In re K.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.M., Defendant and Appellant.
B258393 (Los Angeles County Super. Ct. No. DK04803)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Filed 5/27/15
Timothy R. Saito, Judge. EPSTEIN, P. J.; WILLHITE, J.; MANELLA, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.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 сertified 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel, Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL SUMMARY
The family was referred to the Department of Children and Family Services (DCFS) in 2014, after father‘s sixteen-year-old stepdaughter, T.G., reported he had sexually abused her from when she was about nine years old until she was about thirteen years old.
According to T.G., father had repeatedly touched and kissed her breasts and genitals, had made her touch his genitals, and had digitаlly penetrated her. T.G. claimed to have told F.M. (mother) about the abuse early on, but mother had not believed her. Father recalled being confronted by mother about T.G.‘s allegations. T.G. also reported father had had sexual intercourse with her in Mexico when she was thirteen years old, while T.G.‘s stepsisters, K.M. (born in 2004) and C.M. (born in 2005), were sleeping in the same bed. T.G. claimed father had attempted to molest her aftеr that but had stopped when she threatened to tell mother. He had not touched her in two years.
When T.G. disclosed the abuse in April 2014, mother was reluctant to believe her because, mother said, T.G. habitually lied, had been promiscuous and out of control since she was about eight years old, and her relationship with mother and father was strained. Nevertheless, mother relayed the allegations to T.G.‘s biological father, and they took T.G. to file a police report.
The parents agreed to DCFS‘s safety plan, which provided father would move out of the family home and would have no contact with the children during the investigation, and T.G. would live with her biological father. DCFS‘s investigation uncovered no evidence of sexual abuse of K.M. and C.M., neither of whom was aware of father‘s alleged sexual abuse of their stеpsister.
This appeal followed.
DISCUSSION
Father‘s arguments are directed solely at the jurisdictional findings, which we review for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) We review the record and draw inferences in favor of the dependency court‘s orders. (Ibid.) We do not reweigh the evidence or determine issues of credibility. (Ibid.)
When several statutory bases for jurisdiction have been alleged in a petition, we may affirm jurisdictional findings if any of those bases is supported by substantial evidence. (In re I.J., supra, 56 Cal.4th at p. 773). “Subdivision (j) aрplies if (1) the child‘s sibling has been abused or neglected as defined in specified other subdivisions and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions. (
Under the second prong of subdivision (j), whether substantial risk exists that the abused child‘s sibling will also be abused depends on “the circumstances surrounding the abuse . . . of the sibling, the age and gender of each child, the nature of the abuse . . . of the sibling, the mental condition of thе parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.” (
Although the dependency court is not “compelled, as a matter of law, to assume jurisdiction over all the children whenever one child is sexually abused,” it may be “virtually incumbent” upon the сourt to take jurisdiction over the siblings in light of uncertainty about the sexual predator‘s future actions. (In re I.J., supra, 56 Cal.4th at pp. 779, 780.) Thus, “[c]ases 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. [Citations.]” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968 [collected cases].)
In In re I.J., our Supreme Court identified the severity of sibling abuse as a particularly important indicator from which to gаuge the need for asserting jurisdiction: the more severe the abuse of one child, the less is required to show substantial risk the other children also will be abused. (In re I.J., supra, 56 Cal.4th at p. 778.) Another
Similarly, here, the alleged abuse of T.G. lasted over at least four years, and involved fondling, digital penetration, and intercourse. The abuse occurred for the most part in the family home, and the intercourse took place in the presence of father‘s two biological daughters, who slept in the same bed. At the time the case came to DCFS‘s attention, K.M. was nine and C.M. was eight years old—roughly the age at which the alleged abuse of T.G. started. Father had not acknowledged that abuse, and mother had failed to prevent the abuse when it was first brought to her attention. Thus, the nature and extent of the abuse, father‘s violation of the children‘s trust and absence of any evidence of change in his mental state, his biological daughters’ age at the time of the jurisdictional hearing, and mother‘s failure to take prompt action in T.G.‘s case all support the dependency court‘s finding of jurisdiction over K.M. and C.M. under subdivision (j).
Father‘s argument that there is no evidence K.M. and C.M. were actually abused is unavailing because the court ‘“need not wait until a child is seriously abused or injured to assume jurisdiction . . . .’ [Citation.]” (In re I.J., supra, 56 Cal.4th at p. 773.) Nor is there a requirement that the children actually witness or know of the abuse of their sibling, so long as they “could easily have lеarned of it” or witnessed it by virtue of living in the same household. (Id. at p. 778.)
Father is incorrect that jurisdiction under subdivision (j) must be asserted on precisely the same grounds as under subdivision (b) or (d). “Subdivision (j) . . . allows the court to take into considеration factors that might not be determinative if the court were adjudicating a petition filed directly under one of those subdivisions.” (In re I.J., supra, 56 Cal.4th at p. 774.) He also is incorrect in suggesting that the court based its
The contention that the biological children‘s different circumstances negate the risk of harm to them fails to convince. There is no basis for distinguishing between the siblings. (Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, 215 Cal.App.4th at p. 970 [no valid distinction between abuse of stepdaughter and biological daughter, as both qualify as incest].) That father may be emotionally bonded with his daughters or that K.M. and C.M. may not yet “demonstrate interest in sexual mattеrs,” as he claims, is not dispositive. The record indicates that father entered T.G.‘s life when she was a toddler and the two of them “got along well” until her behavior changed drastically when she was eight or nine yeаrs old, around the time the alleged sexual abuse began, suggesting a connection between the abuse and T.G.‘s acting out sexually and otherwise.
Father‘s claim that no sexual abuse occurred during the four yеars before the jurisdictional hearing is exaggerated. According to T.G., father attempted to molest her after his return from Mexico, and the molestation ended only two years before DCFS got involved. Mоreover, the mere passage of time is not dispositive absent an indication that father has learned about sexual abuse or that his “desire for sex with preteen girls” has changed. (Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, 215 Cal.App.4th at p. 970.) The argument that the рrotective measures in place at the time of the jurisdictional hearing prevented father from abusing his daughters also is unavailing because those protective measures could not have remained in place without the jurisdictional findings.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.