In re G.B.
Filed 4/5/13 In re G.B. CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re G.B. et al., Persons
Coming Under the Juvenile Court Law.
B241634
(Los Angeles
County
Super. Ct.
No. CK91316)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
GARY S.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County. D. Zeke Zeidler, Judge. Affirmed in part; reversed in part.
Cristina
Gabrielidis Lechman, under appointment by the Court of Appeal,
for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Emery El
Habiby Deputy County Counsel, for Plaintiff and Respondent.
_________________________________________
Gary S. (Father) appeals from orders of the juvenile
court finding Father’s children, G. and Manny B., to be dependent children of
the court under Welfare and Institutions Code section 300, subdivisions (a),
(b), (d), and (j) and removing them from Father’s custody.
supports jurisdiction over both children under subdivision (b) and over G.
under subdivision (d). The evidence does
not support jurisdiction over Manny under subdivisions (d) or (j) nor does it
support his removal from Father’s custody.
FACTS AND PROCEEDINGS BELOW
The family
in this case consists of Father, Maria B. (Mother), G. and her half‑brother
Manny. When these proceedings commenced
in January 2012 G. was age nine and Manny was age seven.
Department of Children and Family Services (DCFS) in December 2011, when Mother
and Father got into an argument in a public parking lot and Mother punched
Father several times and then started chasing him with a wrench. Frightened, the children went into a store
and a clerk called the Los Angeles County Sheriff’s Department.
When
sheriff’s deputies arrived at the scene, G. and Manny told them that Mother
punched Father three times with her fist and that they fought almost every time
they met. The deputies arrested Mother
for domestic violence and arrested
both parents for child endangerment based on their constant arguing and
physical violence toward one another in front of the children. G. also told the deputies that a few days
earlier when she was sleeping at Father’s house in the same bed with Father he
touched her vaginal area through her clothes.
The sheriff’s department referred the matter to the DCFS.
G. told the
DCFS worker that Mother and Father fought all the time and that on the same day
as the fight in the parking lot Father had hit Mother and threw a bicycle at
her. As to sexual abuse, G. said that
Father “touches her in her private parts†and that nine or ten times she
has felt a “hairy hand†on her vaginal area.
The touching was always over her clothes. Later she told a DCFS worker that
Father’s touchings happened about four times—twice when she was
eight years old and twice when she was nine years old. These touchings happened when she was in bed
with Father at his home and Manny was in the bathroom. The evidence showed that Father lived in
a house with male roommates. Father had
his own bedroom with a lock on the door.
When G.
testified at the jurisdictional hearing she told the court that she had “not
really†seen her father touch her vaginal area.
She also said she did not remember saying Father touched her
vaginal area and that she thought maybe she dreamed it. She did say that once she felt a hand on her
body but could not remember where and she never saw who the hand
belonged to. Asked if she ever told a DCFS worker
that while staying at Father’s house she “felt a hairy hand†on her vaginal
area, G. quipped: “Well, all the guys
there have hairy hands except for my brother.â€
G. then answered that she did not remember telling a DCFS worker that
she felt a “hairy hand†on her vaginal area.
At the
jurisdictional hearing, Manny said he saw Father and Mother hit each other one
or two times. Most of the time they just
argued and called each other “bad names.â€
Manny estimated that he had seen them do this about 70 times. He denied being physically or sexually abused
by either parent. G. confirmed Manny’s
testimony about her parents’ fighting.
When these fights occurred G. and Manny would run and hide.
When the
DCFS interviewed Father he admitted fighting with Mother and claimed that she
was usually the aggressor. He called the
allegations that he sexually abused G. “absolutely untrue†and stated that Mother
put G. up to making these accusations.
The court
sustained the petition under Welfare and Institutions Code
section 300, subdivision (a) on the basis of domestic violence
between Father and Mother, under subdivision (b) on the basis of domestic
violence and Father’s sexual abuse of G., and under subdivisions (d)
and (j) based on Father’s sexual abuse of G.
At the
disposition hearing the court removed the children from the custody of Father
and Mother. The court placed G. with her
maternal grandmother and placed Manny with his paternal grandmother. Father was ordered to attend various
counseling programs and was awarded monitored visits with both children.
Father
filed a timely appeal from the
court’s jurisdictional and dispositional orders. Mother is not a party to this appeal.
DISCUSSION
EVIDENCE OF DOMESTIC VIOLENCE SUPPORTS A FINDING OF JURISDICTION OVER G. AND
MANNY UNDER SECTION 300, SUBDIVISION (b).
The court found jurisdiction over
the children under section 300, subdivisions (a) and (b). We affirm as to subdivision (b) but reverse
as to subdivision (a).
Jurisdiction
under section 300, subdivision (a) requires proof that the child suffered or is
at substantial risk of suffering “serious physical harm inflicted
nonaccidentally upon the child by the child’s parent or guardian.â€
There was no evidence that Father ever
intentionally physically harmed either of the children or that the
children were at risk of intentional physical harm from him. On the contrary, G. testified that when
a fight broke out between Father and Mother she and Manny would run and
hide in the bathroom or in their bedroom. In the incident that triggered this petition
the children ran inside a store.
Jurisdiction under section 300,
subdivision (b), on the other hand, requires proof that the child suffered or
is at substantial risk of suffering “serious physical harm or illness, as a
result of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child. . . .â€
Physical violence between a child’s
parents may support the exercise of jurisdiction under subdivision (b) if there
is evidence that the violence is ongoing or likely to continue
physically or placed the child at risk of physical harm. (In re
Daisy H. (2011) 192 Cal.App.4th 713, 717.)
Here, the statements by the children and Father’s and Mother’s own
admissions showed that the physical violence between the parents was ongoing
and likely to continue. The children’s
statements that they ran and hid whenever Father and Mother began to fight
suggests that the children believed that they were at risk of physical harm in
those altercations.
EVIDENCE AS TO FATHER SUPPORTS A FINDING OF JURISDICTION OVER G. UNDER
SECTION 300 SUBDIVISION (d).
Jurisdiction under section 300,
subdivision (d) requires proof by a preponderance of the evidence (§ 355, subd.
(a)) that “[t]he child has been sexually abused . . . by his or her parent or
guardian or a member of his or her household.â€
We summarized the evidence supporting
subdivision (d) jurisdiction over G. at page 3, above. We find the evidence was sufficient to
declare G. a dependent child of the court under section 300, subdivision (d).
III. THE
EVIDENCE AS TO FATHER DOES NOT SUPPORT A FINDING OF JURISDICTION OVER
MANNY UNDER SECTION 300, SUBDIVISIONS (d) OR (j).
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 a member of his or her household, 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.†Section 300, subdivision
(j) provides that jurisdiction over a child arises when “[t]he child’s
sibling has been abused or neglected, as defined in subdivision (a), (b), (d),
(e), or (i), and there is a substantial risk that the child will be abused or
neglected, as defined in those subdivisions.â€
The court justified taking
jurisdiction over Manny under subdivisions (d) and (j) on two grounds: “There’s prepubescent and him approaching the
same age [G.] is, and there’s him being in the room when this [molestation] is
happening in the same bed which is exactly the fact pattern of
No court 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. To the contrary, the few studies that we
have been able to locate show that in cases of a father’s incest with a daughter, in the
absence of other indicators of risk, “the male child is not likely to be
victimized.†(Wilson,
Sexually Predatory Parent To The Victim’s Siblings (2002) 51 Emory
L.J. 241, 263-264.)
Studies further show that where a female child is the
initial victim of abuse, the abuser likely will prey upon other female
children in the household, while leaving the male children alone. (Wilson,
supra, at p. 287.) A study published in the Journal
of Child Sexual Abuse found that in 157 cases of sexual abuse within
a family, 135 of the male perpetrators abused only female
children (86%), 13 abused only male children (8.3%) and nine victimized
both male and female victims (5.7%).
(Proeve, A Preliminary
Examination of Specific Risk Assessment for Sexual Offenders Against Children
(2009) vol. 18, issue 6, Journal of Child Sexual Abuse 583, 585; hereafter
Proeve.) “Other indicators of
risk†may include the sexual proclivity of the molester. Is he an indiscriminately promiscuous adult;
a pedophile; a pure incest offender?
(Cavallin, Incestuous
Fathers: A Clinical Report (1966)
vol. 122, No. 10, American Journal of Psychiatry 122, 1132-1138.) Has he molested unrelated
boys? (Wilson, Recognizing
The Threat Posed by an Incestuous Parent to the Victim’s Siblings: Part I:
Appraising the Risk (June 2004) vol. 13, No. 2, Journal of Child and Family
Studies 143, 153.) One study
found that the father’s age when he abuses the minor female and his own sexual
abuse as a minor affected the probability that the father would cross the
gender boundary. (Proeve,
As to the court’s comment regarding
the children’s age and sexual development, we agree that the comparative sexual
development of the molested female and her male sibling may be a factor affecting the male’s risk of molestation. (See § 300, subd. (j), quoted at p. 6,
No evidence of these risk factors was introduced in this case and
no expert witness testified in support of the required “substantial
risk.â€
Contrary to the trial court’s
comment, the facts in this case are not akin to those of
1405. In that case a father
sexually abused his son’s 12- and 14 year-old half-sisters by fondling their
genitals, showing them pornographic movies and masturbating in their
presence. On one occasion, the father
asked one of the girls to take her two-year-old half-brother to the store and,
when the daughter reached to take the child, father exposed his penis to
her. Division Eight of this court held
that the father’s ‘“aberrant sexual behavior’†and his “total lack of
concern†that his son might observe that behavior and thus be
directly victimized, put the boy at substantial risk of sexual abuse under
section 300, subdivisions (d) and (j).
(Id. at pp. 1414-1415.) In contrast, here, no evidence showed
that Manny witnessed any abuse of G. or that any abuse occurred in his
presence. G. testified Manny was asleep
or in the bathroom when Father rubbed her vagina over her clothes and Manny
testified Father did not molest G.
MANNY.
Absent
evidence that Father posed a serious risk of harm to Manny, his past behavior
with G. does not justify detaining Manny from Father and restricting Father to
monitored visitation with his son.
Under
the heightened standard of review
applicable to dispositional orders (In re Alexis
S. (2012) 205 Cal.App.4th 48, 53-54, 55), we conclude that the portion of
the dispositional order
Father’s legal custody and restricting Father to monitored visitation is not
necessary to protect Manny because the court can make orders to avoid the risks
of harm to Manny without depriving Manny of the benefits of being with his
father. Father and Mother are living
separately and under court order not to visit the children together. The court can further reduce the risk that
Manny will be exposed to physical harm from domestic violence by ordering that
Mother’s visits with Manny take place outside Father’s home, that they be
monitored and that Father not be the monitor.
DISPOSITION
The
jurisdictional order as to Manny is affirmed under section 300, subdivision (b)
and reversed under subdivisions (a), (d) and (j). The dispositional order as to Manny is
reversed. The jurisdictional order as to
G. is affirmed under subdivisions (b) and (d) and reversed under subdivisions
(a) and (j). The dispositional order as
to G. is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD,
Acting P. J.
We concur:
CHANEY,
J. JOHNSON,
J.
name="_ftn1" title="">
statutory references are to the Welfare and Institutions Code.
is Father’s biological son. Father has
raised G. as his daughter since she was an infant. Mother and Father separated in 2005.
