Opinion
R.V., Sr. (the father), appeals a judgment declaring his minor son, R.V., Jr. (R.V.), a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (j),
FACTUAL AND PROCEDURAL BACKGROUND
In September 2011, the San Diego County Health and Human Services Agency (Agency) received a referral that the father had been molesting R.V.’s 10-year-old half sister, Y.R.
The mother began to question Y.R.’s honesty regarding the allegations of sexual abuse, claiming Y.R. had a history of lying and she had no negative behaviors associated with having been molested. Consequently, Agency filed
Y.R. reported the father had been sexually abusing her on a weekly basis for at least eight months. The father forced Y.R. to lie down on the bed while he tried to remove her skirt. Y.R. resisted by kicking or pinching the father. Y.R. experienced pain when the father fondled her genital area. She said R.V. was often present in her bedroom and observed the father molesting her. She was concerned that R.V. was learning this behavior, and that the father would eventually molest R.V. When R.V. saw the father inappropriately touching Y.R., he would hit him on the back. Y.R. told R.V. to help her by hitting the father to make him stop touching her. Y.R. said the father often bathed naked with R.V. According to the mother, the father routinely kissed both children on the mouth.
The social worker learned that the mother had taken Y.R. to Tijuana for a psychological evaluation in an attempt to confirm that no sexual abuse had occurred. At Agency’s request, the court issued a protective custody warrant to remove R.V. and Y.R. from the mother’s custody and detained them in out-of-home care. The court ordered a minimum of three supervised visits a week for the mother and no contact between the children and the father.
Y.R. continued to give consistent details about the sexual abuse. She was afraid the mother would never believe the abuse occurred and would continue to accuse her of lying. Y.R. was also afraid the mother wanted to stay in a relationship with the father.
During an interview by the social worker, the mother acknowledged the father may have sexually abused Y.R. as a result of the many problems the mother and father had been having. The mother also admitted her depression caused her to sleep a lot and she failed to attend to the children’s needs. The father denied any inappropriate touching. He said Y.R. was manipulative and demanding, and she sometimes did things to make him angry because he was a strict disciplinarian. He believed maternal relatives had coerced Y.R. into making these allegations.
At the contested jurisdiction and disposition hearing, the court received in evidence Agency’s various reports. Marisol Olguin, a forensic interviewer at Rady Children’s Hospital, Chadwick Center for Children and Families, testified she interviewed Y.R., who disclosed the father had sexually abused
Social worker Lizeth Alvarez testified she had conducted a formal risk and safety assessment in this case, and recommended the court assume jurisdiction and remove the children from the parents’ custody. As part of her assessment, Alvarez considered the mother’s mental health issues, her alcohol abuse and her inability to protect the children. In Alvarez’s opinion, the mother was unable to protect the children because she did not believe the sexual abuse had occurred.
The mother testified, admitting she took R.V. to Tijuana and left him in the care of the father in violation of the no-contact agreement she had with Agency. The mother still did not believe the father had sexually molested Y.R.
After considering the evidence and arguments of counsel, the court sustained the allegations of the petition as to R.V. under section 300, subdivision (j). The court declared R.V. a dependent, removed him from the parents’ custody and placed him in foster care.
DISCUSSION
I
The father challenges the sufficiency of the evidence to support the court’s jurisdictional finding R.V. was at risk of sexual abuse under section 300, subdivision (j). Citing this court’s opinion in In re Maria R. (2010)
A
Section 300, subdivision (j) provides a basis for juvenile court jurisdiction where the child’s sibling has been abused or neglected, as defined
In making its findings under section 300, subdivision (j), “[t]he 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 other [facts] the court considers probative in determining whether there is a substantial risk to the child.” (§ 300, subd. (j); see In re Joshua J. (1995)
We review the court’s jurisdictional findings for substantial evidence— evidence that is reasonable, credible and of solid value. (Maria R., supra, 185 Cal.App.4th at pp. 57, 68; In re S.A. (2010)
B
The issue of whether a parent’s sexual abuse of a female child can support a finding that the child’s male sibling is at substantial risk of sexual abuse has
In In re Karen R. (2001)
In In re P.A. (2006)
In In re Andy G., supra, 183 Cal.App.4th at pages 1414-1415, the juvenile court found a two-year-old boy was at risk of sexual abuse by his father under section 300, subdivisions (d) and (j) as a result of the father’s sexual abuse of the son’s 12- and 14-year-old half sisters. On appeal, the father challenged the sufficiency of the evidence to support the court’s jurisdictional findings, arguing his son was not at risk of sexual abuse because there was no evidence the father had touched him or any other minor male inappropriately. (
In In re Ana C. (2012)
In Maria R., supra,
In reaching our conclusion, we noted that generally, brothers of molested girls may be harmed by the fact of molestation occurring in the family, but in the absence of evidence “that the perpetrator of the abuse may have an interest in sexually abusing male children,” there is no risk of sexual abuse within the meaning of section 300, subdivision (d). (Maria R., supra,
C
Here, the facts are materially different from those in Maria R. and, thus, we are not constrained by our holding in that case with respect to the juvenile court’s findings under section 300, subdivision (j) as to R.V. The record shows the father sexually abused Y.R. at least once a week for eight months by touching and kissing her breasts, touching her genitals (including digital penetration), forcing her onto the bed in order to remove her skirt and making her watch a pornographic movie with him while he exposed his genitals to her. (See Pen. Code, § 11165.1, subds. (a) & (b) [defining “ ‘sexual abuse’ ” to mean “ ‘sexual assault,’ ” including intentional touching of a child’s breasts or genital area for purposes of sexual arousal or gratification].) R.V. not only witnessed the father sexually abusing Y.R., but he also participated in helping Y.R. resist the father’s unwanted advances, showing he was keenly aware of the inappropriateness of the father’s behavior. By repeatedly exposing R.V. to aberrant sexual behavior in this manner, and allowing him to engage in the struggle, the father placed R.V. at risk of sexual abuse within the meaning of section 300, subdivision (d). (See In re Andy G., supra,
Also absent from the circumstances in Maria R. was any expert testimony regarding risk to the son as a result of the sexual abuse of his sisters. Here, the forensic interview expert, Olguin, testified R.V. was a potential victim of sexual abuse because he had witnessed his sister being molested. The father argues expert opinion cannot change the legal, statutory definition of “ ‘sexual abuse’ ” under Penal Code section 11165.1. However, Olguin did not testify R.V. had been sexually abused, nor was her testimony offered to define a legal or statutory term. Instead, Olguin’s opinion was probative of whether the father’s aberrant sexual behavior toward Y.R. created a risk that R.V. might also become a victim of this behavior. (§ 300, subd. (])) We cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
The father asserts there was no evidence he had any interest in engaging in sexual activity with a male child. However, several factors, in addition to the father’s sexual abuse of Y.R., have an established correlation with risk of sexual abuse to R.V. The father often bathed naked with R.V. and routinely kissed him on the mouth. Although these activities could be entirely innocuous under other circumstances, they become suspicious in the context of the father’s audacity to purposely engage in sexually aberrant behavior in front of his three-year-old son. (See Rubisela E., supra,
Again relying on Maria R., the father asserts the evidence was insufficient to support the court’s jurisdictional findings under section 300, subdivision (j) because there was no forensic interview or psychological evaluation of R.V., and R.V. did not reveal anything of concern to the social workers. (Maria R., supra,
As we stated in Maria R., a parent’s sexual abuse of a daughter does not always mean a son is at risk of sexual abuse by that parent. (Maria R., supra, 185 Cal.App.4th at pp. 67-68; see In re A.G. (2012)
II
The father challenges the sufficiency of the evidence to support the court’s dispositional order removing R.V. from the mother’s custody under section 361, subdivision (c)(1). He asserts the mother was participating in services, she had begun to separate from him, and she understood the importance of abiding by a safety plan to allow him no contact with her children. He further asserts R.V. was negatively affected by the separation from his mother.
A
Agency responds by arguing the father forfeited his claim R.V. should not be removed from his custody because he did not raise it in the juvenile court. However, the father is not arguing the court erred by removing R.V. from his custody, but instead from the mother’s custody. Moreover, he is challenging the court’s dispositional order on the ground of insufficient evidence, a claim that is not forfeited even if not raised in the juvenile court. (In re Javier G. (2006)
Agency also asserts the father does not have standing to argue the court erred by removing R.V. from the mother’s custody. Ordinarily, an
B
Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§361, subd. (c)(1); In re Kristin H. (1996)
Here, the court’s dispositional order was based on findings, supported by the evidence, that R.V. was at substantial risk of being sexually abused by the father, who sexually abused Y.R. The mother accused Y.R. of lying and was persistent in her attempts to challenge Y.R.’s disclosure of sexual abuse by the father, showing she would be unable to protect R.V. against the risk of being sexually abused. Although the mother was engaged in services and making progress, she testified at the disposition hearing that she still did not believe the father had molested Y.R. Despite agreeing to abide by the safety plan, the mother had previously violated the court’s order for no contact between the father and the children. As the juvenile court noted, the mother needed to make significant progress before she could provide R.V. with a safe home. Substantial evidence supports the court’s finding R.V. would be at substantial risk of harm if returned to the mother’s custody and there were no reasonable means by which he could be protected without removal. (§ 361, subd. (c)(1).)
The judgment is affirmed.
Haller, J., and McDonald, J., concurred.
Notes
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
Y.R. is not a subject of this appeal.
Based on Olguin’s qualifications and expertise, the court designated her as an expert in interviewing child sexual abuse victims.
In light of our holding, we need not address the father’s contention his due process rights would be violated if we affirmed the jurisdictional finding on a ground other than risk of sexual abuse.