In re Jonathan D.
Filed 1/15/13 In
re Jonathan D. CA4/1
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
>
In re JONATHAN D. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. GREGORY W., Defendant and Respondent; JONATHAN D. et al., Appellants. | D062352 (Super. Ct. No. SJ11987D) |
APPEAL
from findings and orders of the Superior Court of
County, Laura J. Birkmeyer, Judge. Reversed and remanded with directions.
Through
counsel, minors Jonathan D. and Jason W. challenge jurisdictional findings
under Welfare and Institutions Code section 300.
they were not at risk of being sexually abused by Jason's father, who had
sexually abused their older sister, and denied jurisdiction under section 300,
subdivision (j). We reverse.
FACTUAL
AND PROCEDURAL BACKGROUND
Amanda
G. is the mother of five children:
daughters Z.D., A.R. and N.R., now ages 14, 10 and nine years,
respectively, and sons Jonathan D. and Jason W., now ages seven and five years,
respectively. Jason's father is Gregory
W.
"on the streets."
Amanda's
mental health condition is diagnosed as
due to her inability to provide proper care and supervision for her
children. In 2005, Amanda's mother
obtained legal guardianship of the three oldest children. Amanda left Jonathan in her mother's care in
2008.
Gregory
has a history of methamphetamine use and mental
instability. He was sexually
molested by a stranger when he was 12 years old. Gregory was charged with drug offenses in
2004, 2005, 2008 and 2009. He was on
parole from 1992 to 2007, and claimed he had been charged with two counts of
first degree murder that were later dismissed.
In
April 2008, the San Diego County Health
and Human Services Agency (Agency) initiated dependency proceedings on
Jason's behalf due to Amanda's and Gregory's methamphetamine use. Gregory successfully completed his case plan
and maintained his sobriety. The court
returned Jason to Gregory's care under a plan of family maintenance services
and terminated dependency jurisdiction in December 2009.
At
some point in time before May 2010, Gregory, Amanda and the children began
living together. Starting in May, A.R.,
who was mildly mentally retarded, made a series of physical abuse allegations
against Gregory. When asked when this
occurred, A.R. said "tomorrow."
She also said the abuse happened in a dream. In November 2010, A.R. said Gregory put his
private in her butt and bought her ice cream so she would not tell anyone. The Agency deemed the allegations of physical
abuse unfounded and the allegation of sexual abuse inconclusive.
In
November 2011, the Agency investigated an allegation Gregory was sexually
abusing 12-year-old Z.D. Amanda said
Gregory told her he had been having sexual relations with Z.D. for two years
and was in love with her. Z.D. denied
the allegations. Gregory and Amanda
refused to cooperate further with the investigation, and the Agency deemed the
sexual abuse allegations inconclusive.
In
May 2012, A.R. and N.R. told school personnel Z.D. was pregnant and their dad
was the baby's father. They said it was
a secret. In interviews with a social
worker, A.R., N.R. and Jonathan said Z.D. and Gregory shared a bedroom and
slept in the same bed. Their mother
slept in Z.D.'s bedroom. N.R. said,
"If [Z.D.] doesn't want to sleep with dad, daddy asks someone else and
they say yes." N.R. said she
sometimes slept with Gregory, and sometimes she and Jonathan slept with Gregory. She denied any inappropriate touching or
tickling, and stated no one had touched her private areas.
A.R. said she
sometimes slept with her dad. She denied
any touching, saying, "We talk and we sleep." A.R. expressed a desire to marry Gregory.
Jonathan denied
sleeping with Gregory. He denied anyone
had touched his private parts. For
discipline, Gregory spanked him with a belt on top of his clothing. Jonathan said Gregory sometimes spanked the
other children but he did not spank Z.D.
The social
worker tried to talk to four-year-old Jason about private body parts. Jason did not respond but occasionally
grabbed his penis over the top of his clothing.
He denied that anyone had touched his penis, wanted to see his penis or
wanted him to touch them in that area.
During his first dependency case, Jason developed genital warts while he
was in foster care. Physicians,
including a child abuse expert, said it was not possible to determine how Jason
had acquired the warts.
Z.D.
initially denied having sexual relations with Gregory. She claimed a boy named Adrian was the
baby's father. Z.D. later admitted
Gregory was the father of her baby. She
said she and Gregory loved each other, and she had started sleeping in his room
in December or January. She denied that
any of her siblings had engaged in sexual activities with Gregory.
In
an interview with a police detective, Gregory admitted he had impregnated
Z.D. Gregory, who was then 41 years old,
said he was in love with Z.D. He said
she was always by his side, helping him, and took on the position of being his
wife. They wore rings to signify their
relationship as a couple. The pregnancy
was planned. Gregory told Z.D. they
would be able to marry sooner if she was pregnant. Gregory denied having sexual feelings toward
the other children in the home. He said
eight-year-old N.R. was "rubbing on him, trying to follow in her sister's
footsteps" but he told her to stop because her actions were inappropriate.
Amanda attempted
suicide in January 2012 after Gregory told her he was in love with Z.D. Amanda was hospitalized for three days. When she returned home, she stayed in Z.D.'s
bedroom. Amanda did not ask Gregory to
move out of the home because she needed his help to care for the children. She was heavily medicated at that time. Amanda claimed she did not know about Z.D.
and Gregory's sexual relationship until the Agency intervened. She knew Z.D. was pregnant. Z.D. and Gregory told her a boy named Adrian was the
baby's father.
The Agency filed
a petition under section 300, subdivision (d), alleging Gregory had sexually
abused Z.D. It also filed petitions
under section 300, subdivision (j), alleging Z.D.'s siblings were at
substantial risk of being sexually abused.
The Agency later amended the petitions to include a count under section
300, subdivision (b), alleging the children had suffered, or were at
substantial risk of suffering, serious physical harm or illness because of
Amanda's mental health condition and Gregory's inability to provide for them
due to his incarceration on charges of statutory rape and sexual abuse.
The
jurisdictional and dispositional hearings were held on June 29 and July 5, 2012. Over the objection of
minors' counsel, the Agency asked the court to dismiss the petitions filed on
behalf of Jonathan and Jason under section 300, subdivision (j). The Agency asserted it could not meet its
burden of proof under In re Maria R.
(2010) 185 Cal.App.4th 48 (Maria R.).
The court
admitted the Agency's reports in evidence, which included descriptions of the
social worker's interviews with Amanda, Gregory and the children, as detailed
above. The social worker testified. Amanda and Gregory did not present any
affirmative evidence.
The social
worker testified Gregory's sexual abuse of Z.D. placed Jonathan and Jason at
risk of harm because they knew about Z.D.'s and Gregory's relationship and
Z.D's pregnancy, and viewed those circumstances as normal. If Jonathan or Jason were approached by a
perpetrator, they would think sexual abuse was normal, increasing their risk of
being sexually abused.
The social
worker knew of cases in which perpetrators of sexual abuse on females decided
to experiment with males or abused children of different ages. There were reports the children were in bed
with Gregory. Jonathan said he liked to
go into Gregory's room. Amanda was not
protective of the children. The social
worker was concerned that Amanda might choose another predator as her next
partner and that predator might be interested in young boys.
The social
worker acknowledged that in the five conversations she had had with Jonathan,
he did not make any disclosures of sexual abuse or behavior that could be
described as sexual abuse. She believed
Jonathan and Jason were at risk of emotional harm due to Gregory's sexual abuse
of Z.D.
The court denied
the Agency's request to dismiss the counts filed under section 300, subdivision
(j) on behalf of Jonathan and Jason. The
court said Gregory repeatedly sexually abused Z.D. and psychologically
manipulated her siblings. Amanda's long
history of incapacity permitted Gregory to sexually abuse Z.D. In addition to committing individualized
sexual acts, Gregory created a culture in which the abused child was
honored. Under Gregory's influence, the
children did not view his sexual relationship with their sister as
abhorrent. Instead, they viewed it as a
prize.
The court found
that the social worker's testimony was credible and her conclusions regarding
risks to the children were grounded in fact and persuasive. The social worker was aware of cases in which
sexual predators of girls and sexually abused boys. The court observed that Z.D. was petite and
child-like, and appeared to be significantly younger than 13 years. Gregory said Z.D. was responsible for their
relationship. He asserted N.R. had
rubbed up against him of her own free will.
Although it was discounted at the time because of her mental disability,
A.R. said Gregory had sexual contact with her.
Gregory decided to intensify his relationship with Z.D. after the
November 2011 sexual abuse investigation, indicating he enjoyed taking
risks. The court found that all the
children would need significant counseling and daily mentoring to address the
impropriety of Gregory's behavior and the failure of the adults in the home to
protect them.
The court said
it was required to follow Maria R.,
in which this court rejected a finding of jurisdiction under section 300,
subdivision (j) because there was no evidence to show the perpetrator of sexual
abuse on a daughter had a sexual interest in male children, and there was not
any scientific or empirical evidence supporting the conclusion that a
perpetrator of sexual abuse on a female child was likely to sexually abuse a
male child. The court found that the
Agency did not meet its burden to show that Gregory had a sexual proclivity to
male children or had acted in some way to molest Jonathan and Jason, and did
not take jurisdiction under section 300, subdivision (j).
The court
sustained the petitions filed under section 300, subdivision (b), removed
Jonathan and Jason from parental custody, and ordered a plan of reunification
services for Amanda. In Jason's case,
the court also ordered a plan of reunification services for Gregory.
DISCUSSION
A
Jonathan
and Jason contend the court erred when it concluded there was insufficient
evidence to sustain a finding that they were at substantial risk of being
sexually abused. They acknowledge there
is no evidence to show that Gregory had sexually abused them, or that he had a
sexual proclivity for male children.
Jonathan and Jason maintain that the court's findings that Gregory's
behavior was deviant and abhorrent; Jonathan slept with Gregory on one occasion
at Gregory's invitation; Amanda was unable to protect her children; and Gregory
had created a culture in which the abused child was exalted and honored were
sufficient to sustain jurisdictional findings under section 300, subdivision
(j).
B
Section 300,
subdivision (j) provides a basis for dependency
court jurisdiction where the child's sibling has been abused or neglected
as defined in subdivision (a) (serious physical harm), (b) (inadequate care),
(d) (sexual abuse), (e) (severe physical abuse) or (i) (act of cruelty). (Maria
R., supra, 185 Cal.App.4th at p.
61; In re R.V. (2012) 208 Cal.App.4th
837, 842-843 (R.V.).) Where the petition alleges the child's
sibling has been sexually abused as defined in section 300, subdivision (d),
the court may assume jurisdiction under section 300, subdivision (j) if it
finds, after considering the totality of the family's circumstances, there is a
substantial risk to the child in the family home under any of the subdivisions listed in subdivision (j). (Maria
R., at p. 65; R.V. at p. 846; see
also § 355.1, subd. (d) [a finding that a parent has committed an act of sexual
abuse is prima facie evidence in any proceeding the subject minor is a person
described by subd. (a), (b), (c) or (d) of § 300].)
With respect to a
sibling's risk of being sexually abused, as defined in section 300, subdivision
(d),
Maria R. rejected a rule of general
applicability that had been adopted by a line of other cases. (Maria
R., supra, 185 Cal.App.4th at p.
68, discussing In re P.A. (2006) 144
Cal.App.4th 1339, 1347 & In re Andy
G. (2010) 183 Cal.App.4th 1405, 1414; see also, In re I.J., review granted Sept. 19, 2012; S204622.) Those cases held that aberrant sexual
behavior by a parent places the victim's siblings, regardless of gender, at
risk of aberrant sexual behavior, and that is sufficient per se to sustain a
jurisdictional finding under section 300, subdivision (j). (In re
P.A., at p. 1347; Andy G., at p.
1414.) In Maria R., we refused to apply such a per se rule in the absence of
any evidence indicating the perpetrator may have an interest in sexually
abusing male children or any scientific or empirical evidence supporting the
general conclusion that a person who sexually abuses a female child is likely
to sexually abuse a male child. (
we explained the holding in Maria R.
was a narrow one: a parent's sexual
abuse of a daughter does not always mean a son is at risk of sexual abuse by
that parent. (R.V., supra, 208
Cal.App.4th at p. 848.)
Notwithstanding the
clear language of the statutory definition of "sexual abuse" under
section 300, subdivision (d), we also recognize the "commonsense notion
that any child who is residing with a parent . . . who has sexually abused the
child's sibling, and/or a parent who has minimized the sexual abuse of the
child's sibling, is living in a dysfunctional and potentially harmful
environment." (Maria R., supra, 185
Cal.App.4th at p. 68; R.V.,
section 300, subdivision (j), the court considers "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." (§ 300, subd. (j).) "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." (Maria
R., at p. 64.)
C
The juvenile court
misinterpreted and misapplied Maria R. Its interpretation of the nature of the
evidence required to sustain a finding of risk of sexual abuse was unduly
restrictive. The court did not believe
it could sustain jurisdiction under section 300, subdivision (j) if it did not
have any evidence showing that Gregory had an interest in sexually abusing male
children. As we explained in
that have been admitted in evidence to establish a correlation between a
parent's predatory behavior and the risk of sexual abuse to a particular
child. (R.V., supra, 208
Cal.App.4th at p. 847.)
Further, the facts
in this case are materially different from those in Maria R. In
the son was aware of, or had been exposed to, his sisters' sexual abuse. (Maria
R., supra, 185 Cal.App.4th at p.
69.) Jonathan and Jason lived in a home
that accepted child sexual abuse as normal, and elevated the status of the
child sexual abuse victim. In addition,
unlike Maria R., there was expert
testimony regarding the risk to Jonathan and Jason as a result of the sexual
abuse of their sister. (See, e.g.,
The social worker testified that in view of Amanda's incapacity to
parent and protect her children, the family's acceptance of child sexual abuse
increased the risk that Jonathan and Jason would be sexually abused by any
predator, including those who focused solely on male children or acted without
regard to the child's sex. In
determining whether a sibling of a sexually-abused child is at risk of sexual
abuse, as that term is defined under Penal Code section 11165.1,
the court is not restricted from considering evidence that may establish a
correlation between a parent's sexually deviant behavior and the risk of sexual
abuse to the subject child. (
In addition to its
misinterpretation of the evidentiary requirements under Maria R., the court should have, but did not, determine whether
Jonathan and Jason were described by any other subdivision enumerated in
subdivision (j). (Maria R., supra, 185
Cal.App.4th at pp. 65, 67-68 [the court may assume jurisdiction under section
300, subdivision (j) if, after considering the totality of the child's
circumstances, it finds there is a substantial risk to the child under any
subdivision enumerated in subdivision (j)].
The court was acutely aware of the many risks in the home. Those risks included Gregory's sexually
deviant behavior, his grooming of the children to accept child sexual abuse as
normal, his high-risk behavior after the Agency investigated allegations of
sexual abuse, blaming Z.D. and N.R. for his inappropriate sexual behaviors,
using a belt to discipline Jonathan, Amanda's incapacity and both parents'
histories of mental instability.
The court's failure
to consider whether Jonathan and Jason were described by section 300,
subdivision (j) on grounds other than risk of sexual abuse leads to the absurd
conclusion the only jurisdictional grounds for Jonathan's and Jason's dependency
proceedings were Amanda's incapacity and Gregory's absence from the home, as
alleged under section 300, subdivision (b), while ignoring Gregory's sexually
predatory behavior, his impregnation of a 12-year-old child, the normalization
of that behavior and his history of mental instability, crime and substance
abuse. In view of the court's
restrictive interpretation and misapplication of Maria R., we conclude that reversal is required to avoid a
miscarriage of justice. (Cal. Const.,
art. VI, § 13.)
DISPOSITION
The
findings and orders under section 300, subdivision (j) are reversed, and the
matter is remanded to the juvenile court.
The court is directed to proceed under sections 300 and 355.1,
subdivision (d).
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
name="_ftn1" title="">[1] Unless otherwise
specified, statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Z.D.'s father and
A.R, N.R. and Jonathan's father were not involved in the dependency
proceedings.
