In re P.A.
- Reporters:
- ,
- Before:
- Klein, Croskey, Aldrich
KLEIN, P.J.
B.A. (father) appeals an order of the juvenile court adjudging his three minor children dependents under
FACTUAL AND PROCEDURAL BACKGROUND
On October 21, 2005, the Department filed a petition alleging that (1) mother and father had exposed the children to incidents of domestic violence and, on at least one occasion, father pushed and shoved mother, and (2) father had sexually abused P.A. by touching her vagina under her clothes and on top of her underwear and that such conduct placed P.A. and her two brothers at risk of harm and sexual abuse.
The detention report indicated that on October 18, 2005, a social worker responded to a call from the Los Angeles police department to investigate allegations that father had sexually abused P.A. P.A. told the social worker that father molested her on two occasions. The first time, she was asleep but awoke when father placed his hands inside her panties and rubbed her vaginal area. The second time, P.A. was awake because she was too afraid to sleep. P.A. did not tell her mother about these incidents because she did not want to start an argument.
Mother told the social worker that she and father had a very good relationship until mother learned father had a child outside of their relationship. Mother believes father is still involved with the mother of the child because he often leaves on Friday and returns on Monday. Father claims he is spending time with the six-year-old child. Arguments between mother and father have become more frequent and escalate into physical aggression. Two weeks earlier, father pushed mother during an argument in the presence of the
Father admitted he pushed mother during an argument and agreed to move from the home so the children could remain with mother. Father denied molesting P.A. and indicated he recently had chastised her for being outside after dark and P.A. took exception to being corrected in front of her friends.
A social report prepared for November 30, 2005, included statements P.A. made to a social worker on November 11, 2005. In that interview, P.A. indicated her father regularly woke her during the night to cover her with a blanket. Regarding the first incident of molestation, P.A. said father touched her on top of her clothes in her private area and under her clothes on top of her underwear. P.A. indicated her mother may have been in the bathroom during this incident. P.A. told her mother that if father returned to the home, she wanted a room with a lock to keep father out. P.A. cried during the interview.
P.A.‘s brother, F.A., told the social worker he had heard his parents arguing and heard mother calling father names. Sometimes father is too angry to sleep with mother and sleeps with F.A. instead. P.A‘s other brother, K.A., had seen his parents fighting and cursing. Father once pushed mother very hard. K.A. once saw father slap mother‘s face “really hard” but mother hit father back. “[S]he does not let him just hit her.”
Father denied sexual abuse of P.A. and claimed he had observed that she recently had become more rebellious.
Mother indicated she now believed P.A.‘s allegations of father‘s sexual abuse. P.A. told mother that father touched her inappropriately on two occasions. However, on the second occasion, he “barely touched” her because she moved away. Mother wondered if father had engaged in this conduct in order to move to his girlfriend‘s home. Mother indicated that if father “wanted out he should have said so but should not have touch[ed] my daughter.”
The police report, which was included as an attachment to the jurisdictional report, indicated the family resided in a one-bedroom apartment. The three children shared a bunk bed with P.A. sleeping on the top bunk and her brothers sharing the bottom bunk. Mother and Father slept adjacent to the bunk bed. The police report indicated P.A. reported that on October 16, 2005, father stood over after she had gone to sleep and began to rub her vaginal area over her clothing. P.A. believed she was having a dream because she did not see father when she opened her eyes. The next evening, P.A. again believed she was dreaming when she felt father touch her vaginal area and, when she opened her eyes, father was not there. When P.A. was reinterviewed by the police, she said she had observed father standing over her while she slept and that father rubbed her vagina under her panties after her mother had gone to the bathroom. When father heard mother returning from the bathroom, father got back into bed. The following evening, P.A. said everyone was asleep when father began to rub her face with one hand and her vagina with the other. On this occasion, P.A. did not open her eyes and pretended to be asleep.
P.A.‘s brothers both indicated they had not observed any inappropriate touching of P.A. by father.
On February 3, 2005, father admitted amended count (b)(1) of the petition which
Father‘s counsel then argued there was no evidence P.A.‘s male siblings were at risk of harm. The juvenile court expressly found they were at risk of harm by reason of father‘s sexual abuse of P.A. The juvenile court noted the abuse happened at night and father regularly awoke in the middle of the night to cover the children with blankets. Further, P.A.‘s younger brothers were approaching the age at which father began to molest P.A. The juvenile court sustained this aspect of the petition under
CONTENTIONS
Father contends there was insufficient evidence to support the allegation he sexually abused P.A. and, even if there were, there was insufficient evidence that her male siblings were at substantial risk of sexual abuse.
DISCUSSION
1. Sufficiency of the evidence as to P.A.
Father contends the inconsistencies in P.A.‘s various statements and the absence of any corroborating evidence precluded a finding that father sexually abused the child. The alleged inconsistencies were whether father placed his hand over or under P.A.‘s underwear, whether P.A. saw who touched her and whether P.A. had been dreaming about the molestation. Father also argues that, given the family‘s sleeping arrangements, any abuse would have been noticed by another family member and it would have been impossible for father to stand over P.A. as she slept in the top bunk. Father notes mother did not believe father had molested P.A. because P.A. would have told her and mother initially believed P.A. falsely had accused father because she resented his authority. Father corroborated this aspect of mother‘s statement when he told the social worker he recently had scolded P.A. for being outside after dark in front of her friends. Father claims his denial of the sexual abuse allegations is entitled to great weight because he admitted the allegation of domestic violence.
Father‘s arguments are not persuasive. By submitting on the social worker‘s report, father acquiesced in the juvenile court‘s consideration of the evidence contained in the report, but retained the right to challenge the sufficiency of that evidence to support the findings. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565-566, 135 Cal.Rptr.2d 72; In re N.S. (2002) 97 Cal.App.4th 167, 170, 118 Cal. Rptr.2d 259; In re Richard K (1994) 25 Cal.App.4th 580, 589, 30 Cal.Rptr.2d 575.) The standard of proof at the jurisdictional stage of the proceeding is a preponderance of the evidence. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379, 97 Cal.Rptr.2d 746;
Here, although P.A.‘s accounts of father‘s abuse varied in the details, each account related essentially the same two incidents that occurred on successive nights. Thus, substantial evidence supports the juvenile court‘s finding. We note that although father retained the right to cross-examine P.A. and could have presented evidence that suggested it was physically impossible to abuse P.A. in the manner she described, father failed to do either and he failed to argue the inconsistencies in P.A.‘s statements as a basis for not sustaining the amended petition. He therefore cannot complain that the juvenile court chose to believe P.A.‘s statements.
Father also claims there was no evidence that P.A. was currently at a substantial risk of suffering serious physical harm as required by
In sum, the evidence supports the juvenile court‘s finding.
2. Sufficiency of the evidence as to P.A.‘s male siblings.
Father argues that even if his first contention fails, there is insufficient evidence to support the allegation that P.A.‘s two male siblings were at risk of harm as alleged in the amended petition. Father argues neither of the boys ever asserted father had touched them inappropriately, there was no evidence father had sexually abused his sons and both of the boys indicated they were unaware of any abuse of P.A. (Cf. In re Karen R. (2001) 95 Cal. App.4th 84, 90, 115 Cal.Rptr.2d 18.) Father notes his ongoing participation in sexual abuse counseling and parent education classes would minimize any potential risk of harm to P.A.‘s brothers. Also, there was no evidence father suffered from any mental problem or other evidence to demonstrate a likelihood he would pose a risk to his sons. Father argues there was no evidence father had ever engaged in homosexual conduct (In re Jason L. (1990) 222 Cal.App.3d 1206, 1211-1212, 272 Cal.Rptr. 316) and sexual abuse of one minor does not necessarily create a substantial risk that the minor‘s siblings would be sexually abused (In re Rubisela E. (2000) 85 Cal. App.4th 177, 198-199, 101 Cal.Rptr.2d 760). Father concludes the dependency finding on the contested count must be amended to set aside the finding that P.A.‘s male siblings were at risk of sexual abuse due to father‘s conduct.3
In Rubisela E., the case relied upon by father, the juvenile court sustained the dependency petition as to an abused 13year-old girl. (In re Rubisela E., supra, 85 Cal.App.4th at p. 197, 101 Cal.Rptr.2d 760.) Rubisela E. upheld the juvenile court‘s assertion of jurisdiction as to a nine-year-old female sibling under
In In re Karen R., supra, 95 Cal. App.4th 84, 115 Cal.Rptr.2d 18, this court affirmed a jurisdictional finding under
Karen R. found the son personally had been a victim of sexual abuse as that term is used in
We reach the same conclusion here. The abuse in this case concededly is less shocking than the abuse in Karen R. However, this does not mean that Rubisela E. therefore applies. Rather, we are convinced that where, as here, a child has been sexually abused, any younger sibling who is approaching the age at which the child was abused, may be found to be at risk of sexual abuse. As we intimated in Karen R., aberrant sexual behavior by a parent places the victim‘s siblings who remain in the home at risk of aberrant sexual behavior.6
Here, the juvenile court properly could conclude that father‘s presence in the home placed his sons at risk of sexual abuse. This conclusion is consistent with
Although
DISPOSITION
The order is affirmed.
We concur: CROSKEY and ALDRICH, JJ.