In re S.M. CA4/2

• Court: California Court of Appeal
• Decided: November 8, 2023
• Docket: E080286
• Status: Unpublished

Opinion

Filed 11/8/23 In re S.M. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re S.M. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E080286

Plaintiff and Respondent, (Super. Ct. No. DPRI2200127)

v. OPINION

A.M.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,

Judge. Affirmed.

Shobita Misra, under appointment by the Court of Appeal, for Defendant and

Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Prabhath

Shettigar, Deputy County Counsel, for Plaintiff and Respondent.

1 I.

INTRODUCTION

A.M. (Father) appeals the juvenile court’s findings and orders asserting

jurisdiction over his teenage daughter, Su., and removing her from his care. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

The Riverside County Department of Public Social Services (the Department)

received a referral alleging sexual abuse of Su.’s sister, Sa. Father and the girls’ mother

(who is not a party to this appeal) brought Sa., then 16 years old, to the police station

because she wanted to report past sexual abuse against Father. Sa. reported that, when

she was five years old, she was lying in Father’s bed in between him and her sister, Su.,

and Father put his hand down her pants for about five minutes. Father denied the

allegations and was not arrested.

A social worker from the Department interviewed the family the next day. Sa.

said “‘a long time ago,’” when she was between five and seven years old, Father

molested her on two separate occasions. Sa. explained that her mother saw text messages

between Sa. and a friend, in which Sa. said her Father had molested her. Sa. said she was

not afraid of her Father, but worried that he would sexually abuse her again.

Mother confirmed she had read Sa.’s text messages with her friend about Father’s

abuse. When Mother asked Sa. about the texts, Sa. said that Father had touched her.

Mother confronted Father about the texts, and they agreed to take Sa. to the police station

2 to report the accusations because they were concerned Sa.’s friend was going to call the

police.

Father reported that Mother confronted him about Sa.’s allegations, but he denied

them. The social worker thought Father minimized the severity of the allegations by

giving stories of other issues within the family, including that the paternal aunt’s son sent

sexual pictures to Sa. and that Father was very concerned about Sa.’s relationship with

the friend to whom she disclosed the allegations. Father stated that Sa. was “out of

control” and “needed to seek therapy.”

Su. denied any sexual abuse and said she felt safe at home, but acknowledged that

Sa. never told her about Father’s alleged abuse. However, Su. believed Sa. because Sa.

would not lie about the abuse.

The Department discussed with the parents the safety concerns for Sa. with Father

still living in the home and agreed to a safety plan. Father agreed to leave the family

residence during the investigation and to not be around the children. The parents also

agreed to Sa. completing a forensic interview.

The next day, the social worker spoke with the children’s adult sibling, E.D. E.D.

learned of Sa.’s allegations the day before and stated he was concerned because his adult

sibling, T.D., had accused Father of sexually abusing her when she was a minor. When

T.D. was in her 20s, she confronted Mother and Father about Father’s alleged abuse, but

they ignored her allegations because she was addicted to methamphetamine at the time.

3 E.D. explained, however, that T.D. was now sober and maintained that Father sexually

abused her when she was a minor.

The social worker later spoke with T.D., who stated that, when she was between

five and seven years old, her Father touched her twice underneath her clothing and asked

her if she liked it. The abuse lasted a few minutes each time, no one else was around, and

she never told anyone when it happened until confronting her Mother years later.

Sa.’s forensic interview was canceled because Father drove her to the interview in

violation of the agreed-on safety plan. Mother told the social worker that Father drove

Sa. because Mother was sick. Sa. also reported that Father came by the house to pick up

things. When the social worker told Father he could not take Sa. to the interview because

he could not be alone with her, Father said he understood.

Sa. reported that Father molested her when she was between six and seven years

old and that there were two separate incidents. During one incident, Father touched her

with his hand under her underpants while she was lying on the floor in between Father

and Su., who was asleep. During the second incident, Father got into Sa. bed and

“touched her vagina and butthole under her clothing and over her clothing.” Sa. said

Father made her feel ashamed for disclosing the incidents, telling her that he never

abused her and that it would be her fault if he went to jail. She also reported that she

does not want Father living in the home, but he sleeps there and sometimes takes her to

school.

4 Because of the Department’s concerns about Sa.’s allegations and Father

remaining in the home, the Department obtained protective custody warrants and placed

the children in foster care. The juvenile court detained the children from Father (but not

Mother) and issued a temporary restraining order against Father to protect the children.

The Department then filed a petition on behalf of the children under Welfare and 1 Institutions Code section 300. The petition alleged Sa. came within the juvenile court’s

jurisdiction under section 300, subdivisions (b)(1) (failure to protect) and (d) (sexual

abuse) while Su. came within the court’s jurisdiction under section 300, subdivisions

(b)(1) and (j) (abuse of sibling).

Shortly after filing the petition, the Department interviewed the children again.

Sa. confirmed that the petition’s b-1 and d-1 allegations that Father sexually abused her

twice were true. She denied allegation b-3 concerning Father’s purported substance

abuse, stating that she never saw him use drugs but did see him “‘drink a lot of

beer . . . when he comes [home] from work.’” As to allegation j-1 concerning Su., Sa.

said she does not think Su. is at risk in the home because she would never get in the bed

with her Father and he would not do that to her.

Su. stated she did not know about the petition’s allegations b-1 and d-1 concerning

Father’s alleged abuse of Sa. As to allegation j-1, she said that she does not feel at risk of

being abused because she loves her Father and wants him back home.

1 All further statutory references are to Welfare and Institution Code.

5 The juvenile court set the matter for a contested jurisdiction hearing at Father’s

request. At the hearing, the Department asked the juvenile court to strike allegations b-2, 2 b-3, and d-2 while sustaining the remaining allegations concerning Father’s sexual abuse

of Sa. (allegations b-1, d-1, & j-1). Father’s counsel objected to the Department’s request 3 to sustain those allegations. After noting that he had filed a JV-190 on Father’s behalf

outlining what rights Father agreed to waive, counsel urged the court to dismiss

allegations b-1, d-1, and j-1.

The juvenile court found allegations b-1, d-1, and j-1 true and struck allegations b-

2, b-3, and d-2. The court found Sa. came within the court’s jurisdiction under section

300, subdivisions (b)(1) and (d), while Su. came within section 300, subdivisions (b)(1)

and (j). The court adjudged the children dependents of the court, removed them from

Father’s physical custody, and ordered family maintenance services for the parents.

Father timely appealed.

2 These allegations concerned Mother’s alleged failure to protect Sa. from Father’s abuse and his purported substance abuse. 3 Father’s JV-190 was not in the clerk’s transcript on appeal. On our own motion, we ordered the JV-190 deemed part of the record on appeal.

6 III.

DISCUSSION

Father does not challenge the juvenile court’s findings and orders as to Sa. He

instead argues that the juvenile court erred in asserting jurisdiction over Su. and removing

her from his care. We disagree.

We first reject the Department’s argument that Father forfeited his jurisdictional

challenge because he agreed to a negotiated settlement of the petition’s allegations via his

JV-190. “[W]hen a parent submits the jurisdictional issue to be determined by the

juvenile court solely on the basis of the social worker’s report, the parent does not waive

his or her right to challenge the sufficiency of the evidence to support the court’s

jurisdictional finding.” (In re N.M. (2011) 197 Cal.App.4th 159, 166-167.)

That is what Father did here. Father’s JV-190 states that he “wish[ed] to . . .

submit the petition on the basis of the social worker’s . . . report and other documents, if

any.” Father’s attorney declaration states that he “explained and discussed with [Father]

the rights and consequences of . . . submitting the petition on the report.” At the

contested jurisdictional hearing, Father’s attorney urged the juvenile court to strike or

find not true the b-1, d-1, and j-1 allegations against Father. In short, Father submitted

the jurisdictional issue to be determined by the juvenile court based upon the social

worker’s reports and thus did not waive his right to challenge the juvenile court’s

jurisdictional findings on appeal.

7 The Department alternatively argues we should dismiss Father’s appeal because he

does not challenge the juvenile court’s true finding on the d-1 allegation that he sexually

abused Sa. We acknowledge that we may affirm the juvenile court’s assertion of

jurisdiction if the appealing party does not challenge one of several grounds for

jurisdiction. (See In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) But we “generally will

exercise our discretion and reach the merits of a challenge to any jurisdictional finding

when the finding . . . serves as the basis for dispositional orders that are also challenged

on appeal.” (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763, disapproved on other

grounds by In re D.P. (2023) 14 Cal.5th 266, 283.) We exercise our discretion here to

review the juvenile court’s b-1 and j-1 allegations because Father contends they provided

the basis for the dispositional order removing Su. from Father’s care, which Father

challenges on appeal.

We note, however, that both allegations are based only on Father’s abuse of Sa.

and the risk it posed to Su. The b-1 allegation states, “The child, [Sa.], was sexually

abused by her father, in that he touched the child inappropriately underneath her

underwear on two separate occasions.” The j-1 allegation states, “[Su.’s] sibling, [Sa.]

has been abused and/or neglected as defined in subdivision 300(b) and (d) of the Welfare

and Institutions Code, and there is a substantial risk that this child will suffer similar

harm.” Father argues the juvenile court erred in sustaining these allegations because

there was insufficient evidence at the time of the jurisdiction hearing that there was a

current, substantial risk that Father would sexually abuse Su. or put her at any other risk.

8 Thus, our review of the allegations requires us to determine whether the juvenile court

properly found that Father’s sexual abuse of Sa. placed Su. at a substantial risk of harm at

the time of the jurisdiction hearing.

Section 300, subdivision (b) provides that a juvenile court has jurisdiction over a

minor child 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 . . . [t]he failure or inability of the

child’s parent . . . to adequately supervise or protect the child.” Section 300, subdivision

(d) provides that the court has jurisdiction over a child if “[t]he child has been sexually

abused, or there is substantial risk that the child will be sexually abused.” Section 300,

subdivision (j), in turn, confers jurisdiction on the juvenile court over a child 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.”

We review the juvenile court’s jurisdictional findings for substantial evidence. (In

re R.T. (2017) 3 Cal.5th 622, 633.) If substantial evidence supports them, we must

affirm. (Ibid.) “‘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.’” (Ibid.) “To be sufficient to

sustain a juvenile dependency petition the evidence must be ‘“reasonable, credible, and of

solid value”’ such that the court reasonably could find the child to be a dependent of the

9 court . . . . [Citation.]” (In re R.M. (2009) 175 Cal.App.4th 986, 988.) Father bears “the

burden of showing there is no evidence of a sufficiently substantial nature to support the

findings or orders.” (In re E.E. (2020) 49 Cal.App.5th 195, 206.)

The juvenile court here found jurisdiction over Su. under section 300, subdivisions

(b) and (j) based on Father’s sexual abuse of Sa. (§ 300, subd. (d).) Father argues

jurisdiction was improper under both provisions because there was insufficient evidence

that his two instances of sexually abusing Sa. over a decade before the jurisdiction

hearing placed Su. at a current, substantial risk of sexual abuse. We disagree.

“Cases overwhelmingly hold that sexual abuse of one child may constitute

substantial evidence of a risk to another child in the household—even to a sibling of a

different sex or age or to a half sibling.” (Los Angeles County Dept. of Children &

Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968, fn. omitted.) In

fact, “appellate courts have rarely if ever been faced with a situation in which a father

sexually molests one female minor in the household and the juvenile court does not find

another female minor in the household to be at risk.” (Id. at p. 507.) Our Supreme Court

has noted that a finding of sexual abuse involving one sibling “‘makes it virtually

incumbent upon the juvenile court to take jurisdiction over the siblings.’” (I.J., supra, 56

Cal.4th at p. 779.) For that reason, case after case “categorically state[s] that aberrant

sexual behavior directed at one child in the household places other children in the

household at risk, and this is especially so when both children are females.” (Los Angeles

County Dept. of Children & Family Services v. Superior Court, supra, at p. 968, fn.

10 omitted.) This is because a parent sexually abusing a child in the home constitutes a

“‘fundamental betrayal of the appropriate relationship between the generations.’” (I.J.,

supra, at p. 778.)

This is true when, as here, the abuse occurred in the presence of the non-abused

sibling. (See In re Ricky T. (2013) 214 Cal.App.4th 515, 523; In re Ana C. (2012) 204

Cal.App.4th 1317, 1332 [father’s sexual abuse of 11-year old on living room couch

where abuse was “capable of being observed” by other children placed all children in the

home at risk of similar abuse]; In re Andy G. (2010) 183 Cal.App.4th 1405, 1414

[upholding jurisdictional findings based on father’s sexual abuse of the son’s half-sister

while the son was “in the same room [but] facing in the other direction”].) It remains true

even if the abuse occurred long in the past. (E.g., In re Dorothy I. (1984) 162 Cal.App.3d

1154 [affirming jurisdiction based on father’s sexual abuse of sibling 15 years prior].)

This case is no different. Sa. reports that Father sexually abused her twice when

she was five to seven years old, coupled with her fear that Father might abuse her again

and T.D.’s reports that Father also sexually abused her as well, supported the juvenile

court’s unchallenged section 300 subdivision (d) finding, which in turn supported the

court’s sustaining the petition’s subdivisions (b) and (j) allegations. (See Los Angeles

County Dept. of Children & Family Services v. Superior Court, supra, 215 Cal.App.4th

at pp. 964, 968; In re P.A. (2006) 144 Cal.App.4th 1339, 1345-1346; I.J., supra, 56

Cal.4th at pp. 774-780.) The juvenile court thus properly took jurisdiction of Su. under

both subdivisions (b) and (j). The juvenile court did not have to wait until Su. was

11 “‘seriously abused or injured to assume jurisdiction and take the steps necessary to

protect [her].’” (I.J., supra, at p. 773.)

The court also properly removed Su. from Father’s care. To order a child removed

from a parent’s physical custody, the juvenile court must find by clear and convincing

evidence that (1) there “would be a substantial danger to the physical health, safety,

protection, or physical or emotional well-being” of the child in the parent’s home, and (2)

“there are no reasonable means by which the [child’s] physical health can be protected

without” removal. (§ 361, subd. (c)(1); Conservatorship of O.B. (2020) 9 Cal.5th 989,

995.) “‘The parent need not be dangerous and the minor need not have been actually

harmed before removal is appropriate. The focus of the statute is on averting harm to the

child.’ [Citation.] The court may consider a parent’s past conduct as well as present

circumstances. [Citation.]” (In re N.M., supra, 197 Cal.App.4th at pp. 169-170.)

We review the juvenile court’s findings underlying a removal order for substantial

evidence. (In re R.T., supra, 3 Cal.5th at p. 633.) “‘[W]e draw all reasonable inferences

from the evidence to support the [court’s] findings and orders . . .; 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.’” (Ibid.)

Substantial evidence supports the juvenile court’s order removing Su. from

Father’s care. Sa. did not want Father in the home because she feared he would abuse her

again. The Department removed the children from Father’s care not just because of Sa.’s

allegations, but also because of Father’s repeated violation of the safety plan even though

12 he agreed to it and stated that he understood it. Although Father agreed not to stay in the

family home or be alone with Sa. as part of the safety plan, he continued staying at the

home and had unsupervised contact with Sa. Father repeatedly denied Sa.’s allegations,

shamed her for reporting the abuse, and has taken no steps to address and remedy his

behavior. (See In re Ashly F. (2014) 225 Cal.App.4th 803, 806-808 [reversing removal

order because abusive parent acknowledged abuse and expressed remorse, and non-

abusive parent was committed to protecting children from future abuse]; see also In re

A.E. (2014) 228 Cal.App.4th 820, 826 [reversing removal order because it was based on

“an isolated incident that [was] unlikely to recur” given abusive parent’s remorse and

commitment not to use corporal punishment].) Father’s failure to do so is probative of

the fact that there were no other reasonable alternatives to removal because it strongly

indicates Father has failed to confront and deal with the issues giving rise to the court’s

jurisdiction. (See § 366.21, subd. (e)(1) [“The failure of the parent or legal guardian to

participate regularly and make substantive progress in court-ordered treatment programs

shall be prima facie evidence that return would be detrimental”].)

In short, substantial evidence supports the juvenile court’s determination there

were no reasonable means by which Su. could be protected from Father’s sexual abuse

without removal. We therefore affirm the court’s jurisdictional and dispositional orders.

13 IV.

DISPOSITION

The juvenile court’s jurisdictional and dispositional orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON Acting P. J.

We concur:

FIELDS J.

RAPHAEL J.