In re D.C. CA2/2 ( 2021 )

Filed 8/24/21 In re D.C. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re D.C., a Person Coming Under B309256
the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
20CCJP01940B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
E.C.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County. Sabina A. Helton, Judge. Affirmed.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Appellant.
Maryann M. Goode, under appointment by the Court of
Appeal, for Defendant and Respondent.
_________________________
E.C. (father) molested his then 12-year-old daughter, G.C.
(daughter), while in the same room with his then six-year-old
son, D.C. (son). The juvenile court dismissed a petition filed
pursuant to Welfare and Institutions Code section 300,
subdivisions (b), (d) and (j)1 on behalf of son after concluding that
he was differently situated than daughter and not at risk of
sexual abuse or serious physical harm. The Los Angeles County
Department of Children and Family Services (Department)
appeals the dismissal.
We find no error and affirm.
FACTS
Father and S.B. (mother) operated a daycare center at their
home and the family used their living room as a shared bedroom.
While mother and son slept in a queen size bed together, father
and daughter had their own beds. The children’s adult half-
1 All statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2
brother, I.G., lived in a bedroom on the second floor. Mother had
security cameras set up throughout the entire house because of
her daycare business.
Son has cerebral palsy and is developmentally delayed and
somewhat verbal. He has a shunt from his brain to his stomach.
He received occupational therapy, speech therapy, and physical
education through his local school, and he received other services
from a variety of agencies and entities. Father took the children
to school and medical and dental appointments, and he took son
to his therapy sessions. The children were generally well
behaved.
In late 2019, mother and father “separated” because they
were no longer in love but they nonetheless continued living
together. Father’s demeanor changed toward daughter; he would
not let her go places and hang out with her friends, and insisted
that she be picked up from school rather than walk home.
Periodically, father would touch daughter’s thigh. She thought it
was a joke.
Mother was told there would be a scheduled power outage
the night of February 15, 2020. That night, daughter woke up
around 3:00 a.m. to see her father leaning over her looking out a
window. Mother and son were asleep in their bed. Father
covered daughter’s head with a blanket and then put his hand
inside her underwear. He rubbed her vagina for several minutes.
Also, he pulled down her pants and underwear and put his mouth
on her vagina. He used his tongue on the outside area for “a
while.” She pretended to be asleep. After he went back to bed,
she went to the bathroom where she stayed for 30 minutes and
cried. He texted, “Hey are you ok? What’s wrong?” She replied
that she was sick and taking medicine.
3
The next morning, daughter disclosed the touching but not
the oral copulation to mother.2 Mother told father to leave the
home. She checked for a recording on the security cameras but
did not find one. She suspected that father planned the
molestation for the night that the security cameras were not
operating.
A week after the incident, father called daughter and said
“he was sorry for what he did and for not being able to see” son.
But when father was questioned by a social worker, he denied the
incident.
The Department removed son and daughter from father’s
physical custody and then filed a section 300 petition pursuant to
subdivisions (b), (d) and (j) alleging: Father sexually abused
daughter. “On or about 2/15/2020, the father fondled the child’s
vagina and orally copulated the child’s vagina. Such sexual
abuse of the child by father endangers the child’s physical and
emotional health and safety and places the child, and the child’s
sibling, [son], at risk of serious physical and emotional harm
. . . and sexual abuse.”
Son was interviewed and stated that his parents never hit
or spank him. I.G. said he never observed anything in the home
that caused him concern. A maternal uncle said he considered
father a good person and that mother and father took good care of
the children. Mother said father was a good parent who was very
involved with the children’s school, medical appointments and
son’s therapy. She was shocked and surprised by the sexual
abuse.
2 At times, daughter denied the oral copulation. She did,
though, reveal it to nurses at a hospital. At some point, she
revealed it to mother.
4
Prior to the detention hearing, Department recommended
that father participate in individual/family counseling, sexual
abuse awareness counseling, and parenting classes. In April
2020, the juvenile court ordered the children detained from father
and released to mother under Department’s supervision.3 In
September and November 2020, Department reported that father
had not enrolled in any court-ordered programs. He had four-
hour monitored visits with son on Sundays.
Father’s adult daughter stated that she did not think
father was capable of sexual abuse and believed the children
were safe with him. She added that she has a good relationship
with father, and she did not suffer sexual abuse when she was
growing up. She monitored father’s visits with son and reported
no concerns. The visits were consistent and son was happy to see
father.
In a November 2020 addendum report, the Department
notified the juvenile court that father had not enrolled in any
court-ordered programs.
In the jurisdiction/disposition report, the Department
reported that son has a strong attachment to and bond with
father. Father continued to deny the sexual abuse but said he
was willing to participate in programs. He told a social worker:
“I would like everything to be normal. I would like to see my
children without restrictions. I need my kids. I miss them.” He
said that he wanted to visit daughter when she was ready.
3 A September 2020 Interim Review Report refers to court-
ordered programs for father. Presumably, those programs are
consistent with Department’s recommendations. The record,
however, offers no confirmation.
5
On December 1, 2020, the juvenile court held a combined
jurisdiction and disposition hearing. Father’s attorney argued
that son should be dismissed because he is a different sex from
daughter and is therefore differently situated. The attorney
representing son and daughter argued that son was differently
situated and not at risk of harm from father. The juvenile court
ruled that Department met its burden of proving that father
sexually abused daughter but then ruled that son was
“differently situated from his sister.” It dismissed the petition as
to son and sustained the remaining counts as to daughter.
Daughter was removed from father’s custody and placed with
mother under Department’s supervision. It ordered family
preservation services for mother. As for father, the juvenile court
ordered sex abuse counseling for perpetrators, programs for
parenting and fatherhood, and individual counseling.
This appeal followed.
DISCUSSION
Department contends that the juvenile court erred when it
dismissed son from the section 300 petition at the jurisdiction
hearing. “[W]e review the juvenile court’s jurisdictional findings
for substantial evidence. [Citations.]” (In re R.C. (2011) 196
Cal.App.4th 741, 748.) Typically, we review the record in the
light most favorable to the juvenile court’s determinations while
drawing all reasonable inferences that the evidence offers. The
ultimate question is whether there is substantial evidence that
would permit a reasonable trier of fact to conclude that the order
and findings are appropriate. (In re Heather A. (1996) 52
Cal.App.4th 183, 193; In re Matthew S. (1988) 201 Cal.App.3d
315, 321.) Conceptually, this can be difficult when we are asked
to review whether a party successfully proved a claim that a
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juvenile court rejected. To rephrase the law in more palatable
terms, one court explained that the question is “whether the
evidence compels a finding in favor of the appellant as a matter of
law. [Citations.]” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528,
disapproved on other grounds in Conservatorship of O.B. (2020) 9
Cal.5th 989, 1010, fn. 7.)
I. The Relevant Statutory Provisions.
A child can be adjudged a dependent child of the court
under, inter alia, section 300, subdivisions (b), (d), and (j) if there
is a substantial risk that he will suffer serious physical harm as a
result of a parent’s failure or inability to adequately supervise or
protect the child; there is a substantial risk that the child will be
sexually abused as defined by Penal Code section 11165.1;4 and if
his sibling has been abused or neglected as defined in section 300,
subdivisions (a), (b), (d), (e), or (i) and there is a substantial risk
the child will suffer the same abuse or neglect.
II. Section 300, Subdivision (j).
The primary focus of Department’s briefs is on whether the
juvenile court erred when it dismissed the count in the petition
based on section 300, subdivision (j).
Under section 300, subdivision (j), the sibling abuse
provision, a juvenile 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
4 The definition of sexual abuse means sexual assault or
sexual exploitation by various acts including oral copulation,
sexual contact between the genitals of one person and the mouth
or tongue of another person, and intentional touching for sexual
arousal. (Pen. Code, § 11165.1.)
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other factors the court considers probative in determining
whether there is a substantial risk to the child.” (§ 300, subd. (j).)
Subdivision (j) “implies that the more egregious the abuse, the
more appropriate [it is] for the juvenile court to assume
jurisdiction over the siblings. [Citation.]” (In re I.J. (2013) 56
Cal.4th 766, 778 (I.J.).)
By including a list of factors that the other subdivisions of
section 300 lack, subdivision (j) indicates that a juvenile court
must consider the totality of the circumstances. It authorizes a
juvenile court to consider factors that might not be determinative
if it were adjudicating a petition directly under one of the other
subdivisions. As a result, subdivision (j) “‘accords the [juvenile
court] greater latitude to exercise jurisdiction as to a child whose
sibling has been found to have been abused than [it] would have
in the absence of that circumstance.’ [Citation.]” (I.J., supra, 56
Cal.4th at p. 774.)
In the context of a section 300, subdivision (j) case in which
the petition alleges sexual abuse of a sibling, we note the
following: “‘Although the danger of sexual abuse of a female
sibling . . . may be greater than the danger of sexual abuse of a
male sibling, the danger of sexual abuse to the male sibling is
nonetheless still substantial.’ [Citation.] The juvenile court need
not compare relative risks to assume jurisdiction over all the
children of a sexual abuser, especially when the abuse was as
severe and prolonged[.]” (I.J., supra, 56 Cal.4th at p. 780.) Thus,
“when a father severely sexually abuses his own child, the
[juvenile court] may assume jurisdiction over, and take steps to
protect, the child’s siblings.” (Ibid.) As explained by I.J., “If the
sibling abuse is relatively minor, the [juvenile court] might
reasonably find insubstantial a risk the child will be similarly
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abused; but as the abuse becomes more serious, it become more
necessary to protect the child from even a relatively low
probability of that abuse.” (Id. at p. 778.)
The takeaway from I.J. is that the sexual abuse of a child
can pose a risk of sexual abuse to a sibling but it depends on the
circumstances. This is a case-by-case analysis. As I.J. explained,
“the juvenile court is supposed to use its best judgment to
determine whether . . . the particular substantial risk exists.”
(I.J., supra, 56 Cal.4th at p. 779.)
Here, there was a single, short incident of sexual abuse
perpetrated on daughter. Father’s adult daughter had a good
relationship with him and had not suffered any sexual abuse. No
evidence suggested that he has sexual interest in males. Mother
is protective of her children and promptly forced father to leave
the family home upon learning of his crime. The juvenile court
exercised jurisdiction over son for the better part of a year and all
his visits with father went well. Moreover, son was happy to visit
with father. Also, the evidence suggests that son is differently
situated from daughter due to his gender, cerebral palsy,
developmental delays, and his continued good relationship with
father. These facts support a reasonable inference that despite
father’s lone aberrant crime against daughter, son is not at
substantial risk of being sexually abused by father. Thus, this is
not a case in which the evidence compels a finding of jurisdiction
over son as a matter of law.
III. Section 300, Subdivisions (b) and (d).
Department asserts the same arguments regarding the
counts alleged under section 300, subdivisions (b) and (d) as it did
for the count alleged under section 300, subdivision (j), i.e., the
sexual abuse of daughter placed son at risk of sexual abuse and
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therefore the dismissal was not supported by sufficient evidence.
Those arguments fail for the same reasons we explained in
part II of the discussion.
Separately, Department contends that father’s sexual
abuse of daughter established that he abandoned his role as a
protective parent and placed son at substantial risk of suffering
serious physical harm within the meaning of section 300,
subdivision (b). This argument fails, too, because Department
does not explain how the lone incident of sexual abuse necessarily
created a risk of serious physical harm to son, i.e., why the
evidence compels a finding of jurisdiction over son under section
300, subdivision (b) as a matter law.
DISPOSITION
The order dismissing son from the section 300 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_______________________, P. J.
LUI
_______________________, J.
HOFFSTADT
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