In re F.B.
Filed 5/1/13 In re F.B. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re F.B. et al, Persons Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
CHARLES B.,
Defendant and Appellant.
D062696
(Super. Ct.
No. J516449B/C/D/E)
APPEAL from
orders of the Superior Court
of
County, Ronald F. Frazier, Judge. Affirmed.
Charles B.
appeals jurisdictional and dispositional orders concerning four of his
children, F.B., G.B., C.B. and E.B. (together the children). He contends jurisdiction over the children
was not proper under Welfare and Institutions Code
section 300, subdivision (d) because there was no evidence any of them had been
or were at risk of being sexually abused; and jurisdiction was not proper under
section 300, subdivision (b) because there was no evidence they were at
substantial risk of serious physical harm or illness. He also asserts the court erred by ordering
the children removed from his custody.
We affirm the orders.
FACTUAL AND
PROCEDURAL BACKGROUND
On May 31,
2012, the San Diego County Health and
Human Services Agency (Agency) petitioned on behalf of nine-year-old F.B.,
seven-year-old G.B., six-year-old C.B., and five-year-old E.B. under section
300, subdivision (d), alleging the children were at substantial risk of harm
because Charles had sexually abused a six-year-old unrelated female child. The petitions alleged that Charles, while in
bed with the children, had anal intercourse with the child, showed her his
penis, asked her to orally copulate him, touched her vagina, and had her lick
his nipples while she touched him.
Charles was arrested and charged with committing lewd and lascivious
acts with a child under 14. The
petitions were later amended to include allegations under section 300,
subdivision (b), that the sexual abuse of this girl placed the children at risk
of serious harm because Charles had shown an inability to adequately supervise
them by exposing them to this conduct.
F.B., G.B.,
C.B. and E.B. each denied Charles had inappropriately touched them, and they
denied seeing him touch any other children in a sexual manner. S.E., Charles's neighbor, said that when her
three daughters returned home from spending time in Charles's home, her
12-year-old daughter reported she had seen her six-year-old sister in a bedroom
with Charles and the six-year-old's pants were down around her ankles. When questioned, the six-year-old said
Charles had been touching her private area and pointed to her vagina. S.E. said Charles told her daughter to put
his "pickle" (penis) in the daughter's mouth and had forced her to
have anal intercourse with him while his own four children were in the same
bed. The alleged victim also said
Charles had forced her to lick his nipples and this activity had occurred
several times. There also was evidence
Charles had sexually abused the six-year-old's ten-year-old sister.
During
forensic interviews, the six-year-old alleged victim said Charles forced her to
orally copulate him, and he anally penetrated her, rubbed his hand on her
vagina, and forced her hand on his penis while she sucked his nipples. He told her not to tell anyone. The ten-year-old alleged victim said Charles
began touching her when she was eight or nine.
She said at first he was nice, but then began telling her to "suck
the pickle" and anally penetrated her.
She said some of the other children were present when it happened, and
it happened more than once, but she was afraid to tell anyone. Both girls also said they had seen Charles
touch F.B. and G.B. on their buttocks.
The
12-year-old sister of the alleged victims said she had walked into Charles's
bedroom and saw her little sister pulling up her pants. The other children were asleep on the
bed. She said her sister, F.B. and G.B.
always lay on top of Charles and got under the covers while he rubbed their
buttocks.
Charles
denied committing any sexual abuse. He
said he allowed his children and the neighbor children to lie on his bed to
watch television.
The
children gave various accounts of the sleeping arrangements in Charles's
home. F.B. reported Charles slept alone,
and the children slept in another bedroom, but that C.B. and E.B. sometimes
slept with Charles when they were afraid at night. F.B. said she sometimes lay on Charles's bed,
but she did not sleep with him. She said
two of her friends, M. and T., sometimes spent the night, but they never slept
in Charles's bedroom although they might go into the room to ask him for
something. G.B. said she and C.B. slept
with Charles, but F.B. and E.B. did not.
She said F.B.'s friend, T., slept in Charles's room, and Charles let her
do so because he did not want to be mean.
C.B. said three friends spent the night.
Two slept with him and his siblings, but T. slept with Charles. C.B. said T. begged Charles to let her spend
the night with him because his bed was warm and soft. E.B. said he and G.B. slept in their own
room, and F.B. and C.B. slept with Charles.
He also said his friend, M., slept with Charles.
At the
jurisdictional and dispositional hearing, the court considered the documentary
evidence and found the allegations under section 300, subdivisions (b) and (d)
to be true. It found the children were
at substantial risk in Charles's custody and ordered them placed in relative
care.
DISCUSSION
I
Charles
contends there was not substantial evidence to support the jurisdictional
findings.
A reviewing
court must uphold a juvenile court's findings and orders if they are supported
by substantial evidence. (In re Amos
L. (1981) 124 Cal.App.3d 1031, 1036-1037.)
"[W]e must indulge in all reasonable inferences to support the
findings of the juvenile court [citation], and we must also
' . . . view the record in the light most favorable to the
orders of the juvenile court.'
[Citation.]" (In re
Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the
evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d
412, 420.)
Substantial
evidence supports the true finding under section 300, subdivision (d) that
the children were at substantial risk of sexual abuse because Charles had
sexually abused a six-year-old non-related girl while the children were present
in the same bed. The fact the court did
not find Charles had sexually abused his own children is not conclusive. A juvenile court is not required to wait
until a child is actually hurt before assuming jurisdiction. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved
on other grounds in Renee J. v. Superior Court (2001)
26 Cal.4th 735, 748, fn. 6.)
The statutory language of section 300, subdivision (d) specifically
allows jurisdiction based on substantial risk of sexual abuse to the child.
The
six-year-old alleged victim gave a detailed description of the sexual abuse she
had endured. She said on more than once
occasion Charles had forced her to orally copulate him, he had anally
penetrated her, he rubbed her vagina so hard that it hurt, and he forced her to
masturbate him. She said Charles's
children were in the bed most of the time the abuse was occurring, and she had
seen Charles touch F.B. and G.B. on their buttocks when they were in bed with him. The ten-year-old victim described similar
abuse. Substantial evidence was
presented that there was substantial risk of sexual abuse to the children.
We reject
Charles's argument there was no evidence his children had witnessed any abusive
behavior. The court found true the
allegations that Charles had sexually abused the six-year-old girl and that his
children were present in the bed.
Charles's argument the court erred by relying on In re R.V. (2012) 208 Cal.App.4th 837 is without merit. Although In re
R.V. is factually distinct from this case in that there was strong evidence
that R.V. witnessed the sexual abuse and had even helped the victim try to
resist the father's advances (id. at
p. 846), here, the court found the children were present during Charles's
abuse of the victims. The evidence
provides ample support for the court's finding that Charles exposed the
children to his behavior.
Relying on
Cal.App.4th 48, Charles argues even if this court were to uphold the juvenile
court's finding that F.B. and G.B. were at risk, there was no evidence of
substantial risk to the two boys, C.B. and E.B.
There is a split of authority on the issue of whether evidence of sexual
abuse of girls presents substantial evidence of substantial risk of sexual
abuse to boys. (See In re P.A. (2006)
144 Cal.App.4th 1339, 1347; In re Andy G. (2010) 183
Cal.App.4th 1405, 1414; In re
Maria R., supra, 185 Cal.App.4th at pp. 65-67;
Cal.App.4th 177, 197-199.) The
California Supreme Court has granted review on the issue. (In re I.J. (2012) 207
Cal.App.4th 1351, review granted Sept. 19, 2012, S204622.)
In
Cal.App.4th at p. 52, this court
ruled that although there was substantial evidence a father had sexually abused
his two daughters and that their younger sister was similarly at risk, there
was no evidence a younger brother was also at risk of sexual abuse. This court declined to expand the definition
of sexual abuse within the meaning of section 300, subdivision (d) to include
emotional or other harm that a child would suffer based on the disclosure of
sexual abuse in a family or by inadvertently witnessing the abuse of a
sibling. (In re Maria R., supra, 185 Cal.App.4th at pp. 65-67;
accord In re Rubisela E.,
pp. 197-199.) In both
the courts did not exclude the possibility that, even if there was no evidence
the perpetrator had molested male children, brothers in the family could also
be at risk. (In re Maria R., supra,185 Cal.App.4th at p. 67;
Cal.App.4th at p. 198.)
We note the
holding in In re Karen R.
(2001) 95 Cal.App.4th 84. In
daughter had been sexually abused by her father. The court held both her younger sister and
younger brother were at substantial risk of sexual abuse. The court commented although the danger to
the sister may be greater than the danger of abuse to the brother, the juvenile
court did not err by finding that every child in the home was at substantial
risk of sexual abuse. (
144 Cal.App.4th at p. 1347, agreed with this view, stating "aberrant
sexual behavior of a parent places the victim's siblings who remain in the home
at risk of aberrant sexual behavior."
Here, although we do not extend the definition of sexual abuse within
the meaning of section 300, subdivision (d) to include harm from only
witnessing the abuse, we hold Charles's abuse of young girls in the presence of
his children put all of his children, F.B. and G.B., as well as C.B. and E.B.,
at substantial risk of sexual abuse.
Charles has not shown error by the juvenile court's jurisdictional
findings under section 300, subdivision (d) as to all four children.
Charles
also has not shown a lack of substantial
evidence to support the true findings of jurisdiction under section 300,
subdivision (b). The evidence of
substantial risk to the children under section 300, subdivision (d) supports
the true finding under subdivision (b).
Substantial evidence was presented to show Charles did not protect the
children from being present while he sexually abused their young neighbors on
several occasions. Substantial evidence
supports the jurisdictional findings under section 300, subdivision (b).
II
Charles
also contends substantial evidence does not support the court's removal
orders. He requests the children be
placed with relatives without removing them from his custody.
The substantial
evidence that supports the jurisdictional orders also supports the removal
orders. We reject Charles's argument
that the children could have been constructively placed in his care while he
was incarcerated. Cases supporting
custody with a noncustodial, incarcerated parent who is able to make proper
arrangements for someone else to care for his children while he is incarcerated
do not apply to Charles's situation.
Charles was not a noncustodial parent.
He had physical custody of the children at the time they were
detained. Also, they were not removed
from his custody under section 300, subdivision (g) based on his
incarceration. Instead, they were
removed because of true findings he had sexually abused neighborhood
children. The doctrine of constructive
placement does not apply. Substantial
evidence supports the orders of removal.
DISPOSITION
The orders are affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code unless otherwise specified.
name="_ftn2" title="">[2] F.B., G.B., C.B. and E.B had earlier been dependent children
of the juvenile court in 2006 because their mother, L.A., abused drugs. L.A. did not successfully participate in the
court-ordered services offered to her and in 2008, the court awarded physical
custody to Charles.
