In re I.J.











Filed 6/29/12 In re I.J. CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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




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In re I.J. et al., Persons Coming Under the Juvenile Court Law.	B237271 (Los Angeles County Super. Ct. No. CK 59248)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.J., Defendant and Appellant.

APPEAL
from orders of the Superior Court for the County of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles.
Timothy R. Saito, Judge. Affirmed.

Jack
A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.

John F. Krattli,
Acting County Counsel, James M. Owens, Assistant County Counsel, and Emery El
Habiby, Deputy County Counsel, for Plaintiff and Respondent.



_____________________________________

>SUMMARY

J.J., the father
in this juvenile dependency proceeding,
seeks reversal of the juvenile court’s jurisdictional orders adjudging his five
children dependents of the juvenile court.
Father contends that substantial evidence does not support the court’s
findings that he sexually abused his 14-year-old daughter I.J., and further
contends that I.J.’s three brothers (12-year-old twins and 8-year-old D.J.) and
9-year-old sister were not at substantial risk of being sexually or otherwise
abused by their father. We disagree and
affirm the orders.

FACTS

Early in August
2011, I.J.’s mother took her and her four siblings to a police station because
she thought I.J. had been sexually abused by her father. A few days later, the Los Angeles County href="http://www.fearnotlaw.com/">Department of Children and Family Services
filed a petition alleging all of the father’s five children were dependents
under Welfare and Institutions Code section 300, subdivision (b) (failure to
protect), subdivision (d) (sexual abuse), and, as to I.J.’s four siblings,
subdivision (j) (abuse of sibling).href="#_ftn1" name="_ftnref1" title="">[1]

The juvenile
court ultimately sustained allegations that, on August 2, 2011, and on previous
occasions for the past three years, father sexually abused I.J. “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. On a prior occasion, the father forced the
child to expose the child’s vagina to the father and the father orally
copulated the child’s vagina. On a prior
occasion, the father forced the child to watch pornographic videos with the
father. [I.J.] is afraid of the father
due to the father’s sexual abuse of [I.J.].
The sexual abuse of [I.J.] by the father endangers [I.J.’s] physical
health and safety and places the child and the child’s siblings . . . at risk
of physical harm, damage, danger, sexual abuse and failure to protect.” These allegations were sustained under subdivisions
(b), (d) and (j) of section 300.href="#_ftn2" name="_ftnref2" title="">[2]

The Department’s
detention report described separate interviews with the mother and the five
children.

The mother
reported that in 2009, I.J. told her that father was touching her
inappropriately, and mother immediately called the police. But three days later, I.J. recanted and the
case was dismissed. Then, a few weeks
before the events that precipitated this proceeding, mother noticed that
father’s behavior started to change drastically. Father began to drink alcohol abusively, and
started to become angrier at times.
Father always wanted mother to take her son L.J. with her on errands and
to leave I.J. at home. On August 2,
2011, father asked mother to go to the market to get ice cream. Mother felt something was wrong, so she
turned on the web camera on the family computer, hid an MP3 player and started
its recorder. When she returned from the
market, the web camera had been turned off, but the MP3 player was still on.

When mother
listened to the recording, “she heard the father asking the child [I.J.] if she
[would] move in with him, if he left the home, heard the father tell the minor
that she can have male friends but [cannot] have sex with them.” Mother was unable to hear other things on the
tape because the recording was not clear.
She decided to question I.J., and told her about the web camera and the
recording. I.J. then told mother that
father had been touching I.J. inappropriately and having sex with I.J. Mother took the children to the police the
next morning, telling father they were going to the clinic for school
shots. Mother did not want a
confrontation with father in the presence of the children. In the past, father “became irate with
denial” when mother had asked him about abuse.


In a second
interview, when asked why she turned on the web camera and recorder, mother
said father had been “acting strange and since she always had a suspicion, she
turned the devices on.” She also said
that father was very sexually active and they would have sex every day, but
“for the past couple of weeks the father was not seeking for sex.” Mother said that a couple of days earlier,
she “went through [father’s] internet browser and she saw that he has visited
many incest websites.” Mother said
father had never hit her, but is “verbally aggressive, he yells at her all the
time, he is easily irritable and he throws things in the home when he’s upset.”


I.J. was taken
to a medical center for an examination.
The results of the genital examination showed only one small abrasion;
the assessment of the findings was that the examination was “consistent with
history.”href="#_ftn3" name="_ftnref3"
title="">[3]

When she was
interviewed on August 3, 2011, I.J. told the social worker that “on a regular
basis her father forced her to have sex with him on every Tuesday while mother
went to pick up her siblings from school.”
I.J. said she arrives home from school before her siblings on Tuesdays
only. The most recent incident of abuse
was the day before, when father asked mother to go to the market with one of
her twin brothers (S.J., who was always “[l]ooking around seeing what everybody
in the home is doing”). Her father
called I.J. upstairs into his room, went downstairs to see what her other
siblings were doing, and then returned.
“He then told her to pull down her paints [sic], her panties, to bend over and he put his penis in her vagina
from behind.” I.J. denied that her
father ever had sex with her in her buttocks or forced her to have oral sex on
him, but said the father did perform oral sex on her. One time father asked her “to look at a pornographic
videos [sic] on the family computer
that portrayed a father having sex with his daughter.”

I.J. told the
social worker that she never disclosed the abuse to her mother until the
incident with the web camera and recorder, when her mother questioned her about
why the camera was off and told I.J. that she had heard the father saying
sexual things to I.J. on the MP3 player.
I.J. said that her father saw that the camera was turned on, and asked
her to turn it off (because father did not know mother’s password but I.J.
did). I.J. said neither she nor father
knew mother also had an MP3 player recording.
I.J. “admitted to the mother that the father had been abusing her sexually
for approximately three years.” I.J.
told the social worker that “her father has told her if she has sex with him he
would allow her to have male friends, she can wear the type of clothes she
wants to wear and he would allow her to participate in her 15th
(Quinceanera).” She said her father
“normally used condoms but the last two times he did not.”

When asked about
the previous sexual abuse case in 2009, I.J. “stated that the father was
abusing her at that time but she was afraid that her father will go to jail and
she did not want him to go to jail,” so she lied about the abuse. I.J. told the social worker that “she feels
she has done the right thing because she did not want this to happen to her
[sister] as [her sister] will be 11 years old soon and that was the age the
abuse started with her.”

The other
children uniformly reported to the social worker that they felt safe in the
home, liked living with their parents, and were never touched inappropriately
or in a sexual manner by their father or anyone else. None of the children saw their parents using
any drugs or alcohol and none observed any domestic
violence. All of them said that
neither I.J. nor any other sibling had ever told them that father or anyone
else had touched them inappropriately.
The three boys all said that they had never told their mother that I.J.
and the father had been in the parents’ room alone. I.J.’s sister said that on August 2, 2011,
she heard her father and I.J. arguing in the parents’ room, and when she went
into the parents’ room, she “saw her sister behind the room door and the father
at the computer doing homework.” She
said I.J. “did not look angry and her clothes were on.” Except for that occasion, she never observed
I.J. and the father in the room alone.

Father was
interviewed and denied that he or any one else ever touched any of his children
inappropriately. Later attempts to
contact father were unsuccessful, and father did not respond to a letter asking
him to contact the Department.

Three weeks
after the children were detained, they were interviewed again about the
allegations in the petition. The
Department’s jurisdiction/disposition report shows that I.J. then recanted her
previous statements, saying the abuse allegations were not true. She said, “I wanted him [father] out of the house
and I wanted to get him off my back.”
I.J. explained that she “began spending time with the EMO crew and was
told that she needed to start cutting herself and getting into fights to fit
in,” and her father found out and she “then got into trouble.” I.J. said she lied to the social worker about
being sexually abused “because she was angry with her father because he is
strict.” She said, “I did it when I was
11 years old and got away with it. So, I
just did it again.”

The interviewing
social worker did not see any fresh cuts on I.J., and observed that she “could
not maintain a complete thought pattern,” “appeared confused and . . . appeared
to avoid the subject matter.” When asked
about the web camera and the MP3 player, I.J. said that none of those things
occurred, and that “[m]y mother would never say those things.” I.J. denied that mother recorded the
conversation, denied that she told mother she was sexually abused by her
father, and denied any conversation with her father about being able to wear
the clothing of her choice and have male friends so long as she would agree not
to have sex with them. I.J. denied ever
being alone with father, and “then nonchalantly stated that her boyfriend was
pressuring her to have sex with him and on a Tuesday she told her boyfriend
that she was ready to have sex.” She
said that she and her boyfriend had sex in one of the stalls in the boys’
bathroom, but she could not describe the boys’ bathroom. When asked for contact information for her
boyfriend and his parents, she “became quiet” and said something was wrong with
her boyfriend’s telephone.

The later
interviews with I.J.’s four siblings were consistent with the earlier
interviews. The children all denied
being touched inappropriately, and said they were not afraid of their
parents. One of the 12-year-old twin
brothers said he had never witnessed any verbal or physical altercations
between his parents. The twins said they
had not seen I.J. and their father spend time alone in a room. One of them could not recall a time when I.J.
and father were alone at home, and had never witnessed any strange behaviors
between father and I.J. The other twin
said he had not witnessed father mistreat I.J.
I.J.’s sister said she knew that I.J. and her father were arguing; she
did not understand why but she heard them screaming. She said they were upstairs when they were
arguing, and she said she had never witnessed father and I.J. spend time alone
in a room, and that I.J. and father did not spend time alone at home. The youngest boy had never witnessed father
and I.J. alone in a room and had not seen father mistreat I.J. or witnessed any
argument between them.

In another
interview, when again asked why she had placed the recorder and web camera in
the room, mother said that “lately father would become very upset with [I.J.]
for anything that she would do wrong”; that father would not allow mother to
take I.J. with her when she went out; that I.J. had been cutting herself and
when mother asked I.J. about it, I.J. said she was doing so to fit in with
friends at school.

In addition to
the 2009 incident, in 2005 father’s niece accused him of sexually abusing her
when she was 14 years old and was living with the family. According to the Department’s
jurisdiction/disposition report, “although [the niece] recanted her story and
the criminal charges were dropped, the allegations were substantiated.” When mother was asked about these
allegations, mother became defensive and said that the niece was lying; the
niece ran away from home and when mother reported the niece as a runaway, the
niece made the allegations against father.

At the
jurisdiction and disposition hearing, the Department offered into evidence the
Department’s detention and jurisdiction/disposition reports with attached
documents, and these were admitted without objection. No party offered any testimony at the
hearing. Father’s counsel stated that
father “continues to adamantly deny that this occurred,” and that father’s
“belief is the Department failed to meet its burden of proof, and he’s
requesting the court to dismiss those three counts.”

The court
stated:

“The court finds, by a preponderance of the evidence, that in this
case – with regards to (b)(1), (d)(1) and (j)(1) [the counts quoted, at
pp. 2-3, ante], the court finds
there is substantial evidence to sustain those counts in this case. [¶]
With regards to the allegations, the child gave an extremely detailed
statement with regards to the time and manner the abuse took place, even how
the father had sex with her in this case, telling her she could have certain
privileges if she kept having sex with him, that she could have a boyfriend and
a Quinceanera party. [¶] The timing was very significant in this case;
when the child was confronted by the mother, that there was a recording in the
room, indicating he [sic] admitted to
the abuse. Her statements were
consistent with the law enforcement report, as well as . . . the
forensic report in this case.”

The
court declared the children dependents of the court and found, “by clear and
convincing evidence, . . . that there is a substantial danger to the children,
if returned to the home, to the physical health, safety, protection, physical,
emotional well-being of the children, and there are no reasonable means by
which the children’s physical health can be protected without removing the
children from the father’s custody in this case.” The court removed all the children from
father’s custody, and ordered them placed with mother under the supervision of
the Department. The court ordered
monitored visits for father (and that mother was not to monitor the visits),
and father’s court-ordered case plan called for sex abuse counseling for
perpetrators and family counseling.

Father
filed a timely appeal.

>DISCUSSION

Father asks us
to reverse the juvenile court’s jurisdictional and dispositional orders,
contending the evidence was insufficient to support the court’s finding that he
sexually abused I.J., and there was no evidence her siblings were at risk of
being sexually abused. We reject both
contentions.

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.” (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. [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].”’ [Citation.]”
(In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)

As
to the sexual abuse of I.J., father appears to think that substantial evidence
does not exist because I.J. had recanted by the time of the jurisdictional
hearing, telling the social worker that none of the allegations were true. There is, of course, no authority for that
proposition. There was ample evidence
from which the juvenile court could conclude – as the Department did – that
I.J.’s initial reports were true and her recantation was not. We will not again recount the evidence, which
appears above in sufficient detail to make it obvious that, under the
principles of appellate review, there is no basis for overturning the juvenile
court’s finding that father sexually abused I.J.

Father
next argues that I.J.’s siblings did not suffer any abuse and were not at risk
of suffering any abuse, as the evidence showed all the siblings were happy at
home and were treated well by the father.
He points out that the juvenile court “did not make any factual findings
regarding how or why the siblings were at risk of sex abuse by their father,”
and describes the risk of sexual abuse of I.J.’s sister or her brothers as
speculation, relying on In re Rubisela E.
(2000) 85 Cal.App.4th 177 (Rubisela
E.), In re Maria R. (2010) 185
Cal.App.4th 48 (Maria R.), and >In re Alexis S. (2012) 205 Cal.App.4th
48 (Alexis S.).

We
first reject the notion that, merely because younger siblings of a sexually
abused girl are treated well by the abusing parent, they are therefore not at
substantial risk that they will be sexually abused (§ 300, subd. (d)) or
will suffer “serious physical harm or illness” as a result of the parent’s
failure to protect them (§ 300, subd. (b)).
I.J. too may well have been happy and well-treated by her father until
she reached the age of 12, when her father began the sexual abuse. The oldest of her younger siblings were of
comparable age (12) or younger (9 and 8 years old) at the time of the court’s
findings. So their current good treatment
has no bearing on their risk of future harm if they remain in their father’s
custody.

Next,
as to I.J.’s younger sister, nine years old at the time of the court’s orders,
there can be no legitimate dispute that the evidence places her at substantial
risk of sexual abuse as she approaches her sister’s age. While all accusations were eventually
recanted, this is the third time that father has been accused of sexually
abusing a child: I.J. in 2009, when she
was 12; father’s niece in 2005, when she was 14; and I.J. again (and apparently
continuously) at the age of 14. (The
Department’s jurisdiction/disposition report, finding a pattern of sexual
abuse, also notes that father began dating mother when he was 21 and she was
14, and mother gave birth to I.J. when she was 16 years old.) The evidence is more than substantial that
I.J.’s sister is at substantial risk of sexual abuse. (See Rubisela E.,> supra, 85 Cal.App.4th at p. 197 [“The
circumstances surrounding the abuse of Rubisela support a finding under section
300, subdivision (j) as to her sister”; it was “reasonable for the juvenile
court to determine that in Rubisela’s absence, Father’s sexual offenses were
likely to focus on his only other daughter”].)

Finally,
we come to father’s claim there was no evidence that I.J.’s brothers were at
risk of “serious physical harm or illness” as a result of father’s failure to
protect them (§ 300, subd. (b)), and no evidence they were at risk of being
sexually abused (§ 300, subd. (d)). He
relies on a number of cases concluding that evidence of sexual abuse of a
daughter does not support a finding that sons are at risk of sexual abuse. (See, e.g., Rubisela E., supra, 85
Cal.App.4th at pp. 197-199 [“[s]exual abuse of one[] sibling can support a
trial court’s determination that there is a substantial risk to the remaining
siblings,” but there was no evidence of suspicious conduct by father with
respect to minor son and, while a showing of harm from knowledge of sibling
molestation or from other circumstances is possible, in Rubisela E. there was no demonstration by the department of a
substantial risk to the sons]; Alexis S.,> supra, 205 Cal.App.4th at pp. 49-50,
52, 55 [evidence that the father inappropriately touched the adolescent half
sister of his two sons (fondling her breasts and buttocks and kissing her on
the mouth) “did not support that the boys were at risk of sexual abuse”; there
was “no evidence that the boys were in any way aware of [father’s] actions” and
any risk of emotional injury from being in a home where sexual abuse was
occurring “had been eliminated, as [father] had moved out of the family home
and was in compliance with an order prohibiting further contact with [the
abused half sister]”; there was “no evidence of any proclivity on [father’s] part
to abuse or molest sexually immature children or males of any age, or to expose
them to inappropriate sexual behavior”].)

Father
also relies on Maria R., >supra, 185 Cal.App.4th 48. There, the court observed that brothers of
molested girls may be harmed by the fact of molestation occurring in the
family, but “in the absence of evidence demonstrating that the perpetrator of
the abuse may have an interest in sexually abusing male children,” there is no
risk of sexual abuse within the meaning of subdivision (d) of section 300 of
the Welfare and Institutions Code. (>Maria R., supra, at p. 67.) This is
because, Maria R. explained,
subdivision (d) limits sexual abuse to the definitions in Penal Code
section 11165.1 (sexual assault and sexual exploitation), and “>does not include . . . the collateral
damage on a child that might result from the family’s or child’s reaction to a
sexual assault on the child’s sibling.”
(Maria R., at pp. 67-68.)

The >Maria R. court also held, however, that
the subdivision (j) ground of jurisdiction based on abuse of a sibling “does
not limit the grounds of dependency adjudication for a child whose sibling has
been abused to the same subdivision of section 300 that applies to that
sibling. Rather, the plain language of
section 300, subdivision (j), directs the trial court to consider whether there
is a substantial risk that the subject child will be abused or neglected, as
defined in section 300, subdivision (a), (b), (d), (e), or (i).” (>Maria R., supra, 185 Cal.App.4th at
p. 53; see id. at p. 63 [“[t]hus, the
basis for taking jurisdiction of [the son] under subdivision (j) is not limited
to a risk of sexual abuse, as that term is defined by subdivision (d)” and the
Penal Code].) The court found that
findings of sexual abuse of a boy’s sisters “constitute prima facie evidence
that [the son] is a child described by section 300, subdivision (a), (b), (c)
or (d) and that he is at substantial risk of abuse or neglect” (>Maria R., supra, 185 Cal.App.4th at p. 69), but that the agency had only
pursued the allegation that the son was at risk of being sexually abused.href="#_ftn4" name="_ftnref4" title="">[4] The court remanded the
matter with directions to detain the son in protective custody and “order the
Agency to assess any harm that [the son] may have suffered, or any risk to him
that may exist, under section 300.”
(Maria R., at p. 70.)

We
respectfully disagree with the constraints placed by these cases on a juvenile
court’s ability to take jurisdiction over male siblings whose father has
“forcefully raped” their sister. We
agree instead with In re P.A. (2006)
144 Cal.App.4th 1339 (P.A.) and >In re Andy G. (2010) 183
Cal.App.4th 1405 (Andy G.).

In >P.A., the court found two male siblings
were at risk of harm by reason of the father’s sexual abuse of their sister
(“touching [her] vagina under her clothes on top of her underwear”), even
though both brothers indicated they had not observed any inappropriate touching
of their sister by the father, and there was no evidence father had ever
engaged in homosexual conduct. (P.A.,> supra, 144 Cal.App.4th at pp. 1343,
1345.) The Court of Appeal rejected the
father’s effort to set aside the finding that his sons (eight and five years
old, respectively) were at risk of sexual abuse, observing that the juvenile
court had “found P.A.’s brothers were at risk of harm because they were
approaching the age [(nine)] at which father had begun to abuse P.A. and father
had access to the boys because he routinely awoke during the night to cover
them.” (Id. at p. 1345.) The
court relied on In re Karen R. (2001)
95 Cal.App.4th 84, 90-91 (Karen R.),
where the court concluded: “[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 within
the meaning of section 300, subdivision (d), if left in the home.” The P.A.
court, observing that the abuse in P.A.
was “concededly . . . less shocking than the abuse in Karen R.,” was “convinced that where, as 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. As we intimated in Karen R., aberrant sexual behavior by a
parent places the victim’s siblings who remain in the home at risk of aberrant
sexual behavior.” (P.A., supra, at p.
1347.)

P.A. further found its
conclusion consistent with section 355.1, subdivision (d), which provides that
when a parent has been found in a prior dependency hearing to have committed an
act of sexual abuse, that finding is prima facie evidence that the “subject
minor . . . is at substantial risk of abuse or neglect.” (§ 355.1, subd. (d)(3); P.A., supra,
144 Cal.App.4th at p. 1347.) The
court observed that, although there was no prior dependency proceeding, the
provision “nonetheless evinces a legislative determination that siblings of
sexually abused children are at substantial risk of harm and are entitled to
protection by the juvenile courts.” (>P.A.,
supra, at p. 1347.)

Andy G. is to like
effect. Agreeing with >P.A., the court found the juvenile court
could properly conclude that a father’s aberrant sexual behavior with the 12-
and 14-year old half sisters of his 2-year-old son placed the son at risk of
sexual abuse. (Andy G., supra,> 183 Cal.App.4th at p. 1415.) In Andy
G., the father’s sexual abuse of the girls (who were not his children)
consisted of touching the breast of one of the girls (on top of her shirt),
trying to touch the vagina of the other girl while she was in bed, exposing his
penis, exposing one of the girls to a pornographic video and masturbating in
her presence. (Id. at p. 1408.) >Andy G. observed that the only difference
from P.A. was that Andy was only two
and one-half years old, and so was not “‘approaching the age at which [his half
sisters were] abused.’” (>Andy G., at p. 1414.) But other
factors convinced the court the evidence was sufficient to support the findings
that Andy was at substantial risk of sexual abuse: “While Andy may have been too young to be
cognizant of A.G.’s behavior, A.G. exposed himself to Janet while Andy was in
the same room (albeit apparently facing in the other direction). Indeed, the court could infer, as the
Department suggests, that [the father] used Andy to get Janet to approach him
so he could expose himself to her, by asking her to take Andy to the store and
holding out the money to do so. This
evinces, at best, a total lack of concern for whether Andy might observe his
aberrant sexual behavior.” (>Ibid.)
In addition, the father believed he should not have to undergo sexual
abuse counseling for perpetrators. (>Id. at pp. 1414-1415.)

In this case, we
adhere to the sound principle stated in P.A.: “aberrant sexual behavior by a parent places
the victim’s siblings who remain in the home at risk of aberrant sexual
behavior.” (P.A., supra, 144
Cal.App.4th at p. 1347.) Here, father’s
behavior was 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.”
We recognize that his sons were completely unaware of his behavior at the
time, but it is not possible for that unawareness to continue. The three boys are at risk of learning to
become a sexual predator like father and of learning from father that it is
appropriate to manipulate others who are more vulnerable.

We find the
observations in Rubisela E.
telling: “We do not discount the real
possibility that brothers of molested sisters can be molested [citation] or in
other ways 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 in a web of denial.” (>Rubisela E., supra, 85 Cal.App.4th at p. 198.) We cannot, however, agree with >Rubisela E. that it would be
“problematic” to uphold jurisdiction under subdivision (j) as to the sons
simply because there is currently no evidence of any “suspicious” contact by
the father with the sons. (>Rubisela, at p. 198.) Likewise, we reject the criticism in >Maria R. that cases such as >P.A. and Andy G. have not “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.)

It is of course
impossible to say what any particular sexual predator – and here a predator who
has raped his own daughter – is likely to do in the future in any particular
instance. But in our view that very
uncertainty makes it virtually incumbent upon the juvenile court to take
jurisdiction over the siblings, at least until such time as the offending
parent produces evidence that the siblings are not at substantial risk of sexual abuse or other harm. (Cf. § 355.1, subd. (d) [where a parent has
been found in a prior dependency hearing to have committed an act of sexual
abuse, “that finding shall be prima facie evidence in any proceeding that the
subject minor is a person described by subdivision (a), (b), (c), or (d) of
Section 300 and is at substantial risk of abuse or neglect” and that evidence
“constitutes a presumption affecting the burden of producing evidence”]; >In re Kieshia E. (1993) 6 Cal.4th 68,
76-77 [“When a parent abuses his or her own child . . . the parent also
abandons and contravenes the parental role.”].)

In short,
nothing in Rubisela E., >Maria R., or Alexis S. persuades us to depart from the principles stated in >P.A.,
Karen R. and Andy G. The rape by a father 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 within
the meaning of section 300, subdivision (d), if left in the home.” (P.A.,> supra, 144 Cal.App.4th at p. 1346,
quoting Karen R., supra, 95 Cal.App.4th at
pp. 90-91.) Evidence of sexually
aberrant behavior of that magnitude is sufficient to support the juvenile
court’s finding that the sexual abuse of I.J. “places the child and the child’s
siblings . . . at risk of physical harm, damage, danger, sexual abuse and
failure to protect.” The juvenile court
is mandated to focus on “ensur[ing] the safety, protection, and physical and
emotional well-being of children who are at risk” of physical, sexual or
emotional abuse. (§ 300.2.) That is what the court did here.

>DISPOSITION

The
jurisdictional and dispositional orders are affirmed.



GRIMES,
J.



I
concur:



BIGELOW,
P.J.

FLIER, J.,
Concurring and Dissenting



For the reasons explained by the
majority, substantial evidence supports jurisdiction over I.J. and her
nine-year-old sister.

In contrast, no substantial evidence
supports jurisdiction over I.J.’s three brothers S.J. (age 12), L.J. (age 12)
and D.J. (age 8) (collectively the brothers).
The brothers repeatedly denied that father touched them inappropriately,
wanted to live with father, and were unaware of father’s abuse of I.J. No evidence showed that they were at risk of
physical harm or sexual abuse, and no other basis for jurisdiction was
alleged.

To assume jurisdiction, the juvenile
court must find by a preponderance of the evidence that the child is a person
described by Welfare and Institutions Code section 300.href="#_ftn5" name="_ftnref5" title="">[5] (§ 355, subd. (a).) The Los Angeles County Department of Children
and Family Services (DCFS) carries the burden of proof. (In re
Ashley M. (2003) 114 Cal.App.4th 1, 7, fn. 3; In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.)href="#_ftn6" name="_ftnref6" title="">[6] To affirm the juvenile
court’s finding of jurisdiction, our record must contain “‘“‘substantial’ proof
of the essentials which the law requires.”’
[Citation.]” (>In re B.T. (2011) 193 Cal.App.4th 685,
691.) The juvenile court sustained
allegations that the brothers were dependents of the juvenile court under
section 300, subdivisions (b), (d), and (j).

>1.
>Section 300, Subdivision
(b)

Section
300, subdivision (b) provides that a child is a dependent of the juvenile court
if “[t]he child has suffered, or there is a substantial risk that the child
will suffer, 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, or the willful or negligent failure of the child’s parent or
guardian to adequately supervise or protect the child from the conduct of the
custodian with whom the child has been left, or by the willful or negligent
failure of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the parent or
guardian to provide regular care for the child due to the parent’s or
guardian’s mental illness, developmental disability, or substance abuse.”

With
respect to the brothers, there was no evidence they were at risk of serious
physical harm as a result of father’s failure to supervise or protect
them. The only evidence was that the
brothers felt safe with father and wished to continue living with him. The brothers denied any abuse, and no evidence
suggested their denials were inaccurate or made to protect father. No other evidence suggested the brothers were
at risk of abuse. Additionally, DCFS did
not allege that father failed to provide them with adequate food, clothing,
shelter, or medical treatment. The
juvenile court therefore erred in taking jurisdiction under section 300,
subdivision (b). (See >In re B.T., supra, 193 Cal.App.4th at p. 692, italics omitted [to support
jurisdiction under this section, there must be evidence that “‘at the time of
the jurisdictional hearing the child is at substantial risk of serious physical
harm . . . .’”].)

2. Section 300, Subdivision (d)

Section 300, subdivision (d)
provides that a child is a dependent of the juvenile court if “[t]he 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, or the parent or
guardian has failed to adequately protect the child from sexual abuse when the
parent or guardian knew or reasonably should have known that the child was in
danger of sexual abuse.” 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 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.).)

There is a split of authority
whether a male child is at risk of sexual abuse when his female siblings have
been sexually abused. >In re Karen R. (2001) 95 Cal.App.4th 84,
In re P.A. (2006) 144 Cal.App.4th
1339, and In re Andy >G. (2010) 183 Cal.App.4th 1405 concluded
that a male child was at risk when his female siblings had been abused. Karen R.
explained 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 within the meaning of section 300, subdivision (d), if left in the
home.” (Karen R., supra, at pp.
90-91.) Maria R. rejected these holdings, concluding instead that there was
no evidence “that a perpetrator of sexual abuse of a female child is in fact
likely to sexually abuse a male child.”
(Maria R., supra, 185 Cal.App.4th at p. 68.) Similarly, in In re Rubisela E. (2000) 85 Cal.App.4th 177, 199 (>Rubisela E.), the court held that the
father’s abuse of his daughter did not constitute substantial evidence his sons
were at risk of sexual abuse. More
recently, In re Alexis S. (2012) 205
Cal.App.4th 48, 55-56, concluded that no evidence supported removing male
children from a father’s legal custody after the juvenile court sustained allegations
that the father touched their half sister inappropriately.

Here,
no evidence supported the finding that the brothers were at risk of sexual
abuse. There was no evidence father had
an interest in engaging in sexual conduct with a male child. Speculation that a father may sexually abuse
a male child is insufficient to support jurisdiction. Instead, there must be evidence such that the
court reasonably could find the child to be a dependent of the court. (In re
Sheila B. (1993) 19 Cal.App.4th 187, 198-199.) The court erred in taking jurisdiction over
the brothers under section 300, subdivision (d). (Maria
R., supra, 185 Cal.App.4th at p. 68.)


>3. Section 300, Subdivision
(j)

Section 300, subdivision (j)
provides that a child is a dependent of the juvenile court if “[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.
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.”

The allegations with respect to the
brothers under section 300, subdivision (j) are the same as those under section
300, subdivision (d) and lack evidentiary support for the same reasons. Although subdivision (j) is broader than
subdivision (d), DCFS alleged no other harm to the brothers as a result of the
sexual abuse of I.J. The fact that in
general a male child may be harmed by “knowledge that a parent has so abused
the trust of their sister,” or other consequences of sexual abuse of a sibling
(Rubisela E., supra,
85 Cal.App.4th at p. 198), does not show jurisdiction was proper in this
case because DCFS did not allege the brothers suffered any specific harm as a
result of I.J.’s abuse and the record contains no evidence showing the brothers
suffered such harm.

I would reverse the juvenile court’s
assumption of jurisdiction over the brothers, and affirm jurisdiction over I.J.
and her sister.





FLIER,
J.