In re E.P.



Filed 1/6/11 In re E.P. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re E.P. et al., Persons Coming Under the Juvenile Court Law.	B224049 (Los Angeles County Super. Ct. No. CK 79302)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. EDGAR P., Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County, Donna Levin, Juvenile Court Referee. Affirmed.
Gerard D. McCusker, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White Svec, Deputy County Counsel, for Plaintiff and Respondent.

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Edgar P. (father) challenges jurisdictional and dispositional orders removing his daughter and stepson from his custody and finding that they were dependents of the juvenile court. He argues that evidence he sexually abused his 14-year-old stepdaughter (Melinda) was insufficient to support jurisdiction over either his 12-year-old stepson (Jessie) or his daughter (E.P.), who was under two. Finding substantial evidence supports the court’s orders, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has three children, Melinda, Jessie, and E.P. Father is E.P.’s biological father and, until these proceedings, lived with mother, Melinda, Jessie and E.P. J.P. is the biological father of Melinda and Jessie. In October 2009, when these proceedings began, Melinda was 14, Jessie was 12, and E.P. was one and a half years old. Father has three other children -- an adult daughter and two teenage boys -- who are not parties to this proceeding. The juvenile court found that Jessie and E.P. were at risk of physical and emotional harm and sexual abuse based on evidence contained in reports of the Department of Children and Family Services, and father challenges those findings on appeal. Father does not challenge the order taking jurisdiction over Melinda and placing her in J.P.’s care.
1. The petition
The juvenile court sustained the following Welfare and Institutions Code section 300 allegations pursuant to subdivisions (d) and (j).^[1] Father “sexually abused the child Melinda. Such sexual abuse consisted of . . . father fondling the child’s vagina. Such sexual abuse of the child on the part of . . . father endangers the child’s physical and emotional health, safety and well-being, creates a detrimental home environment and places the child Melinda and the child’s siblings, Jessie and [E.P.] at risk of physical and emotional harm and damage and sexual abuse.”
2. The Department’s reports
In October 2009, Melinda informed J.P. that father had molested her in August 2009. J.P. took Melinda to the San Fernando Police Department, where she reported that she had awakened in bed in the early morning to discover father had one hand beneath her underwear and was stroking her bare vagina with his bare hand. He had a lit flashlight in the other hand. When Melinda moved, father abruptly turned off the flashlight, removed his hand from beneath her underwear, and quickly left the room, saying, “Sorry, baby.” Melinda told the police she believed father had been touching her while she slept ever since the family moved into their current residence (mother and father had been married for a year and a half). She had awakened several times and seen father walking out of her bedroom. Melinda later told a social worker that she tried to keep her bedroom door locked after the August 2009 incident. The last time she saw father in her bedroom, he was trying to pull the blanket off her in bed; but when Melinda moved, he ran out of her bedroom and later acted as if nothing had happened.
Melinda also told the police that sometime during the summer of 2009, she saw father set up a video camera in the bathroom, after which father suggested she take a shower, but she felt uneasy and chose not to shower. Melinda told an adult neighbor and friend, Sandra, that she did not like father because once, after she had taken a shower and was blowdrying her hair, she stepped out of the room to go get something, and when she returned, there was a camera in the bathroom. When the police interviewed mother, she said father set up the video camera in the master bathroom, which Melinda was not allowed to use, and that she and father planned to film themselves having sex in the shower.
Melinda disliked father and was afraid of him. She did not know what to do immediately after the August 2009 incident. Eventually, in October, the day after Melinda told Sandra about the camera in the bathroom, Melinda sent Sandra a text message saying, “I need to tell you something that I couldn’t say.” A few minutes later, Melinda sent Sandra another text message, “He . . . touched me when I was asleep and I think it was more than once and I moved and he left.” Sandra sent Melinda a text in reply asking if Melinda had told her mother. Melinda sent a reply text: “Because I’m scared that she [won’t] believe me what would happen to her . . . .”
Sandra asked Melinda for J.P.’s telephone number and called him to tell him that J.P. needed to talk to Melinda as a parent. In describing this to the social worker, Melinda said she felt better when J.P. told her not to be scared and they were going to the police station, but she began to cry after disclosing her fears that her mother did not believe her. J.P. showed the social worker a text message he received from Melinda shortly before she told him about father’s abuse. It said, in part, “I want[ed] to tell [you] this a long time but was scared[.] Edgar touched me before when in [sic] was sleeping and I never want to tell [you] cuz I was scared.”
Sandra told the Department’s social worker that when Melinda first told her about the camera in the bathroom, she was inclined to believe father was acting inappropriately because of her own sense of unease in father’s presence. She said once when she was visiting Melinda and her family in their home, she turned to lock the door (presumably, to Melinda’s bedroom) but father was there; “he popped out of nowhere,” saying he just wanted to check on their well-being. Sandra said the incident “creeped [her] out.”
Father’s adult daughter, Tania, had written a letter when she was 14 years old stating that father had choked her and said he wanted to kill her. The Department investigated the family and determined that father and his first wife (Tania’s mother) were going through a divorce, and that father had choked his wife in Tania’s presence. One of father’s sons acknowledged telling Melinda that father once broke a woman’s rib after the woman “disrespected” father, but stated that he may have exaggerated in saying father actually broke a rib.
The Department also interviewed a woman, Kimberly, who worked in an office at Cedars-Sinai, where, at that time, father was an assistant office manager of the parking garage. Initially, she made friendly small talk with father, but then he began to beg her for dates and “make sexual accusations.” Kimberly described father as a “pervert” and a “stalker.” She became convinced he purposefully altered the functioning of her parking access card, because it did not function when she tried to enter and leave the garage. Each time, Kimberly had to get out of her car and walk to the other tower to father’s office and ask him to correct the malfunction. Father would tell her, “I was waiting for you,” and only laughed or giggled when she accused him of causing her card to be rejected. Kimberly reported father’s behavior to her office manager, who said “he was doing this to other girls.” Kimberly said this went on for a year, until her employer moved to Beverly Hills, about four years before she spoke with the social worker. Kimberly also reported that, coincidentally, her daughter later became a friend of Melinda. When Kimberly learned that Melinda lived with father, Kimberly refused to let her daughter go to Melinda’s house, which was hard because the girls wanted to have slumber parties. Kimberly said Melinda still talks to Kimberly’s daughter and recently told her that Melinda’s mother did not believe father is a “pervert.”
Father denied Melinda’s allegations. Father believed that Melinda fabricated the abuse in order to facilitate mother’s reunion with J.P. Mother also reported that Melinda sought to reunite mother and J.P. Mother initially had difficulty believing that father abused Melinda, and subsequently adamantly denied Melinda’s allegations.
Father told the social worker he did not get involved with Melinda, since she was not his child, and only entered her bedroom to bring her medicine when she was sick or to turn off her television. However, “after further probing, [father] stated that he often goes into Melinda’s bedroom to observe her bedroom and her personal belongings to learn what [Melinda] is up to and to notify her mother if there was anything of concern.” Father then blamed mother for his behavior, saying “he feels that he needs to go into Melinda’s bedroom because the mother is not very pro active in finding out what her children are up to or in parenting her children.” The social worker reported, “Melinda does not want [father] to return to the family home as she has a lot of unresolved anger towards him; she doesn’t feel safe around his presence; and she is uncertain if her mother would fully protect her given mother[’s] ambivalence towards the sexual abuse.”
The Department gave father referrals for parenting, sexual abuse group counseling, and individual therapy in November 2009. At that time, and in April 2010, father reported he was not going to comply with the sexual abuse program. He refused to sign the case plan, which included sexual abuse and other mental health counseling.
3. The adjudication and disposition hearing
No testimony was offered at the adjudication and disposition hearing on April 27, 2010. All parties submitted on the Department’s reports and offered argument. Counsel for the three children urged the court to sustain the allegations of sexual abuse of Melinda and risk of harm to Jessie and E.P. The children’s counsel represented to the court that Jessie believed his sister was telling the truth, and she expressed concern about leaving E.P., who was very young and vulnerable, in the home with father before he had received appropriate services to help him deal with his issues.
The court found that Melinda was a person described by section 300, subdivision (d), and Jessie and E.P. were persons described by section 300, subdivisions (d) and (j). Melinda was removed from mother’s home and placed in the home of her father, J.P., with her mother to have unmonitored visitation. Jessie and E.P. were removed from father and released to mother’s home. The court found that there was a substantial danger to the children if they were returned to father’s physical custody. The court ordered father was to have monitored visitation with Jessie and E.P. in a neutral setting outside the home, and mother was not permitted to monitor the visits.
Father was ordered to attend parent education classes and individual counseling to address sex abuse as an offender and sexual boundaries. Father appeals from the jurisdictional and dispositional orders.
DISCUSSION
On appeal, father “vehemently denies” sexual abuse of Melinda but acknowledges there is substantial evidence to support the findings as to Melinda under section 300, subdivision (d). Father argues there is insufficient evidence for the court to find that either Jessie or E.P. is a child described by section 300, subdivision (d) or (j). “We review the juvenile court’s jurisdictional findings for sufficiency of the evidence. [Citations.] We review the record to determine whether there is any substantial evidence to support the juvenile court’s conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court’s orders, if possible. [Citation.]” (In re David M. (2005) 134 Cal.App.4th 822, 828.)
“[I]ssues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “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.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The purpose of the juvenile court law “is to provide maximum safety and protection for children” being harmed or who are at risk of harm, “and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2.)
Substantial evidence supports the findings under section 300, subdivisions (d) and (j), that father’s conduct put Jessie and E.P. at risk of physical and emotional harm and sexual abuse. The police investigator, Department social workers, J.P., Sandra, and Jessie all believed Melinda was telling the truth about father’s molestation; the children’s counsel agreed that Melinda was telling the truth and Jessie and E.P. were at risk -- and the court so found -- yet, father still denies any wrongdoing. Worse, he refuses to seek counseling to address the problems that caused three children to be declared dependents of the court and placed in the care, custody and supervision of the Department, despite the court’s explicit warning that, since it did not terminate jurisdiction, all parents faced serious consequences for violation of any court order. Father’s denial of his sexual misconduct with Melinda shows he was not rehabilitated and is likely to reoffend.
Father was a persistent and manipulative sexual predator, both in the home and the workplace. Sandra, a family friend, and Kimberly, a former co-worker, described father as a “pervert” or “stalker,” and the Department concluded father “invad[ed] their space” and had “very poor boundaries.” Father’s use of a video camera in a bathroom used by Melinda is also aberrant behavior. Jessie denied having witnessed father’s abuse of Melinda, but he said he believed what his sister disclosed was true. Not only does Jessie risk learning to become a sexual predator like father, but he risks learning from father that it is appropriate to manipulate others who are more vulnerable. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 198 [“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 in a web of denial”].) A sexually abusive and manipulative father in the home supports the finding that “the home environment of the children is extremely dysfunctional, and poses a risk to their well-being.” (In re Maria R. (2010) 185 Cal.App.4th 48, 54, 69.)
Father argues substantial evidence does not support jurisdiction over Jessie because there was no evidence Jessie witnessed any sexual abuse of Melinda and no evidence that father has predatory interests in males. Similarly, he argues substantial evidence does not support jurisdiction over E.P. because, unlike Melinda and Jessie, who are not his biological children, E.P. is his natural child. Similar arguments have been rejected by the courts, and we reject them here, too. We find father has demonstrated numerous sexually aberrant behaviors without predictable boundaries in terms of the age of his victims or manner of his abuse, which, when coupled with his total denial and refusal to seek counseling, create a substantial risk of harm to Jessie and E.P. (In re Andy G. (2010) 183 Cal.App.4th 1405 [sufficient evidence to support jurisdiction over a two-year-old boy when the father sexually abused his 12- and 14-year-old daughters]; In re P.A. (2006) 144 Cal.App.4th 1339, 1341, 1345 [father’s one occasion of touching vagina of nine-year-old on top of her underwear supported jurisdiction over eight- and five-year-old brothers; any younger sibling approaching the age of the abused child is at risk of sexual abuse]; In re Karen R. (2001) 95 Cal.App.4th 84, 90-91 [sexual abuse of daughter is so aberrant that it can place son at risk of abuse].)
Required to focus “on the safety, protection, and physical and emotional well-being of the child” (§ 300.2), the dependency court found Jessie and E.P. to be children described by section 300, subdivisions (d) and (j). We conclude substantial evidence supports the court’s determination.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.


GRIMES, J.
I CONCUR:


BIGELOW, P. J.

Flier, J., Concurring and dissenting opinion.
I concur in the conclusion that the jurisdictional and dispositional orders with respect to Melinda should be affirmed. I, however, would reverse the jurisdictional and dispositional orders with respect to Jessie and E.P.
The issue in this case is whether Jessie and E.P. are at risk of sexual abuse as defined in Welfare and Institutions Code section 300, subdivision (d).^[2] Welfare and Institutions Code, section 300, subdivision (d) defines sexual abuse in pertinent part as follows: “The 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.”
Penal Code section 11165.1, subdivision (a) referred to in Welfare and Institutions Code section 300, subdivision (d) contains multiple definitions of sexual abuse, including rape, sodomy, lewd or lascivious acts upon a child, oral copulation, sexual penetration, and child molestation. Respondent relies on Penal Code section 11165.1, subdivision (b)(4), which defines sexual abuse or sexual exploitation as follows: “The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.”
Penal Code section 11165.1 “refers to specific sex acts committed by the perpetrator on a victim, including child molestation . . . and does not include in its enumerated offenses the collateral damage on a child that might result from the family’s or a child’s reaction to a sexual assault on the child’s sibling.” (In re Maria R. (2010) 185 Cal.App.4th 48, 67-68 (Maria R.).) Thus, the majority’s ultimate conclusion that Jessie and E.P. were at “substantial risk of harm,” does not show jurisdiction was proper under Welfare and Institutions Code section 300, subdivision (d). It does not show Jessie or E.P. was at risk of sex abuse – the only basis for jurisdiction in this case.^[3] (Maria R., supra, at p. 69 [evidence that the home was “extremely dysfunctional” and posed a risk to the children’s “well-being” did not show child was at risk of being sexually abused].) “None of the courts that has held or impliedly concluded that a child, regardless of gender, whose sibling was sexually abused, may be found to be at risk of sexual abuse under [Welfare and Institutions Code] section 300, subdivision (d), either directly or under [Welfare and Institutions Code] section 300, subdivision (j), has cited any scientific authority or empirical evidence to support the conclusion that a person who sexually abuses a female child is likely to sexually abuse a male child.” (Maria R., supra, 185 Cal.App.4th at p. 68.)
Here, there was no evidence Jessie and E.P. were at risk of sex abuse as defined by the relevant statutes. Evidence of a dysfunctional home does not show Jessie and E.P. were at risk of sexual abuse. Similarly, evidence that Jessie or others believed Melinda’s accusations is not probative of Jessie or E.P.’s risk of sexual abuse because it has no tendency to show father was likely to sexually abuse Jessie or E.P. Evidence that father had not attended counseling may be probative of his likelihood to reoffend, but it neither demonstrates that father had an interest in engaging in sexual activity with a male child nor that he had an interest in engaging in sexual conduct with a two-year-old child. (See In re Rubisela E. (2000) 85 Cal.App.4th 177, 199 [finding that father’s abuse of his daughter did not constitute substantial evidence his sons were at risk of sexual abuse]; In re P.A. (2006) 144 Cal.App.4th 1339, 1347 [holding that a sibling “approaching the age at which the child was abused, may be found to be at risk of sexual abuse”].) In short, none of the evidence supported a finding that Jessie or E.P. was at risk of the specific sex acts enumerated in Penal Code section 11165.1 and incorporated in Welfare and Institutions Code section 300, subdivision (d).
Other evidence in the record suggested that Jessie and E.P. were not at risk of sex abuse. Jessie unequivocally stated that father never touched him inappropriately. Jessie’s half-brothers, who were father’s biological sons, stated that father never touched them inappropriately. It was undisputed that father never sexually abused his adult daughter, who like E.P. was his biological child. Because there was no substantial evidence supporting jurisdiction over Jessie and E.P., I would reverse the order assuming jurisdiction over them. Following Maria R., I would remand the case to the juvenile court to detain Jessie and E.P., allowing DCFS to file an amended or supplemental petition if warranted by evidence Jessie or E.P. was at risk of abuse or neglect. (Welf. & Inst. Code, § 300, subd. (j); Maria R., supra, 185 Cal.App.4th at pp. 71-72.)
With respect to Melinda, substantial evidence supports the finding that father sexually abused her – an undisputed issue. Most significantly, Melinda stated that father molested her by putting his hand underneath her underwear and touching her vagina. She speculated that father may have done this on other occasions because she saw him quickly leave her room. In addition, father suggested Melinda shower after he had a video camera set up in the bathroom. Kimberly believed Melinda’s accusations because father inappropriately altered her parking card to force her to speak with him. Jessie and others also credited Melinda’s accusations, notwithstanding father’s denial. I would therefore affirm the finding that Melinda was a dependent of the juvenile court, and I would affirm her placement in J.P.’s care.



FLIER, J.


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