In re Angelica H.






Filed 10/7/11 In re Angelica H. CA2/5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

In re ANGELICA H. et al., Persons Coming Under the Juvenile Court Law.	B233020 (Los Angeles County Super. Ct. No. CK85625)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.H., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Timothy R. Saito, Judge. Affirmed.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.

_______________________________
A.H. (father) appeals from the judgment of April 12, 2011, declaring his daughter, Angelica H., and son, Bryan H., dependents of the court under Welfare and Institutions Code section 300.^[1] He contends substantial evidence does not support the assertion of jurisdiction over Bryan. We hold substantial evidence supports the findings, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURE

Angelica, born in 1994, and Bryan, born in 2006, were born to T.G. (mother) and father,^[2] who were married and lived together. By 2002, parents had moved to the United States from their home in Mexico, leaving Angelica behind with a relative caretaker. In 2008, Angelica was sent to the United States to live with parents. Father drank heavily during the week and usually got drunk on weekends.
In about 2009, father began to sexually molest Angelica. He started gradually, by having her sit on his lap while he caressed her legs, hugging and kissing her, having her watch pornographic movies, and touching her breasts. He warned that, if she told mother, mother would force her to leave the home and Bryan, who was very attached to Angelica, would be left all alone. In late August 2010, father made Angelica watch a pornographic movie and forcibly raped her. She protested and cried. Father warned her not to tell mother, because mother would put her in jail and Bryan would be alone. On subsequent occasions, acting as though nothing had happened, father gave Angelica kisses, hugs, and caresses and told her he loved her. The rape resulted in pregnancy, which father had Angelica abort in October 2010.
Angelica told mother about the rape. When mother confronted father about Angelica’s disclosure, father denied his role. Subsequently, Angelica began to have a sexual relationship with a 30-year-old male. Father refused to take steps to protect Angelica, believing Angelica had become the “property” of her boyfriend.
In mid-November 2010, Angelica left home. When she attempted to return a few days later, parents rejected her. Father told the boyfriend father did not want Angelica anymore and the boyfriend had better keep Angelica forever.
The Department of Children and Family Services (Department) took Angelica and Bryan into protective custody on November 30, 2010. Father was arrested and admitted to the police he had sexual intercourse with Angelica. He said he was trying to educate Angelica about sex with a man, but he lost his head. He said he was drinking at the time and was messed up in his head. He said Angelica laughed and enjoyed the intercourse. Father subsequently recanted his confession and denied he had intercourse with Angelica.
On April 12, 2011, the dependency court declared Angelica and Bryan dependents of the court based on sustained allegations, as to father and Bryan, under section 300, subdivisions (b), (d), and (j): in August 2010, father forcibly raped and fondled Angelica and kissed her on the mouth, placing Bryan at risk of physical harm, sexual abuse, and failure to protect; and in 2010, Angelica was sexually molested by a 30-year-old male, and, knowing of the abuse, father failed to protect her, placing Bryan at risk of harm under subdivision (b). Custody was taken from parents. Pursuant to findings under section 361.5, subdivision (b)(6),^[3] father was denied reunification services as to Bryan. Father was granted monitored visits after release from custody. Father remained in custody during the proceedings. Bryan did not indicate he missed him.

DISCUSSION

Dependency Judgment

Father contends the judgment making Bryan a dependent of the court must be reversed because substantial evidence does not support the dependency court’s assertion of jurisdiction over him, in that father’s sexual abuse of Angelica is not sufficient to show Bryan was at risk of sexual abuse under section 300, subdivisions (b), (d), and (j). As other findings, not challenged by father, support jurisdiction, we reject the contention.
In addition to sustaining the allegations father challenges on appeal, the dependency court also sustained allegations that mother’s failure to protect Angelica from being sexually abused by father placed Bryan at risk of harm under section 300, subdivisions (b), (d), and (j), and both parents’ failure to protect Angelica from being sexually abused by her adult boyfriend placed Bryan at risk of harm under section 300, subdivision (b). These findings are not challenged on appeal, and father does not contend they are insufficient to establish jurisdiction.
A dependency judgment may be affirmed if the court has jurisdiction on any of several grounds, without the reviewing court considering whether the other grounds are supported by substantial evidence. (In re Alexis E. (2009) 171 Cal.App.4th 428, 451; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) A child can come within the court’s jurisdiction if abused by either parent. (In re John B. (2001) 88 Cal.App.4th 1140, 1143.)
As jurisdiction over Bryan was properly established based on the unchallenged findings of a risk of harm to him from parents’ failure to protect Angelica from the adult boyfriend and mother’s failure to protect Angelica from father, the findings challenged by father are not necessary to affirm the judgment declaring Bryan a dependent of the court. (In re Shelley J. (1998) 68 Cal.App.4th 322, 330; In re Jonathan B., supra, 5 Cal.App.4th at p. 875.)

Substantial Evidence Supports the Findings of the Petition

In any event, father’s contention that no substantial evidence supports the findings he placed Bryan at risk of harm under section 300, subdivisions (b), (d), and (j), in that his sexual abuse of Angelica is not sufficient to show Bryan risked being sexually abused, is incorrect.
“In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] 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. [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.)

Section 300, subdivision (d)

Section 300, subdivision (d) describes in pertinent part a child who “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,[^[4]] by his or her parent[.]”
“[T]he phrase ‘sexual abuse’ for purposes of section 300[, subdivision (d)] is defined by reference to the offenses enumerated in Penal Code section 11165.1 . . . . [Citation.] Penal Code section 11165.1 refers to specific sex acts committed by the perpetrator on a victim, including child molestation under Penal Code section 647.6,[^[5]] 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.)
The Legislature has determined that children of parents who have committed child sexual abuse are at substantial risk of harm from the abuser. (§ 355.1, subd. (d).)^[6] “[T]he intent of the Legislature [in enacting section 355.1] was to focus on the heightened risk facing minors who come into contact with sex offenders . . . .” (In re John B., supra, 88 Cal.App.4th at p. 1145.) The presumption in section 355.1, subdivision (c) that siblings of sexually abused children are at risk of abuse by the offender is not restricted to siblings of the same gender as the sexually abused child. (See § 355.1, subd. (d).) Section 355.1, subdivision (d) “evinces a legislative determination that siblings of sexually abused children are at substantial risk of harm[, without regard to the siblings’ gender,] and are entitled to protection by the juvenile courts.” (In re P.A. (2006) 144 Cal.App.4th 1339, 1347; accord, In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 5; compare In re Karen R. (2001) 95 Cal.App.4th 84, 90-91 [incestuous sexual molestation of daughter is so aberrant that it can place son at risk of the abuse; the male sibling of a sexually abused daughter is not safe merely because he is a male] and In re Maria R., supra, 185 Cal.App.4th at p. 68 [“brothers of girls who have been sexually molested by a parent may [not], on that basis alone, be found to be at risk of sexual abuse”].)
Substantial evidence supports the finding there is a substantial risk Bryan will be sexually abused under section 300, subdivision (d). Both Bryan and Angelica are father’s biological children. Father’s rape of Angelica was not a single incident of molestation perpetrated by father. It was a culmination of a year-long progression of increasingly intrusive sexual touchings and annoyances, which included forcing Angelica to watch pornography. Moreover, father continued to sexually molest Angelica in the months after the rape. He used force to accomplish the penetration, and he persisted in the face of Angelica’s evident extreme distress. Believing he was engaged in the parental role of teaching his child about sex, he interpreted Angelica’s protestation and tears as joy and laughter. He did not understand the harm he was doing. The rape occurred while he was drinking alcohol, which he did regularly. He recanted his confession, denied his role, was unrepentant, and unrehabilitated. It is reasonable to infer from this evidence of father’s distorted notion of parenting, sustained sexual pursuit of his biological child while intoxicated (including committing incest), lack of empathy, and lack of rehabilitation that there is a substantial risk father will sexually abuse his other biological child in the home.

Section 300, subdivisions (b)^[7] and (j)^[8]

We need not consider whether father’s sexual abuse of Angelica created a risk of harm to Bryan under section 300, subdivision (b), because the section 300, subdivision (b) finding as to father was sustained on the separate, unchallenged ground that father’s failure to protect Angelica from abuse by her boyfriend created a risk of harm to Bryan. (In re Alexis E., supra, 171 Cal.App.4th at p. 451.) We reject father’s contention substantial evidence does not support the section 300, subdivision (j) finding, because the findings Bryan is at risk of abuse under section 300, subdivisions (b) and (d) are sufficient to support the finding under section 300, subdivision (j) that there is a substantial risk Bryan will be abused “as defined in section 300, subdivisions (a), (b), (d), (e), or (i)[.]” (See § 300, subd. (j).)^[9]

DISPOSITION

The judgment is affirmed.


KRIEGLER, J.

We concur:

TURNER, P. J.


MOSK, J.
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