Filed 10/3/13 In re D.C. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re D. C., et al., Persons Coming Under
the Juvenile Court Law. B246044
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK94306)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
SALVADOR C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Marilyn
Mordetzky, Referee. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Appellant
Salvador C.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Melinda A. Green, Senior Associate County Counsel, Attorneys for Respondent.
_____________________________
Salvador C. appeals from the juvenile court’s jurisdictional order declaring his
minor sons, D. and Mitchell, dependents of the juvenile court pursuant to Welfare and
Institutions Code section 300, subdivision (d).1 He also appeals from the juvenile court’s
dispositional order removing both boys from his custody pursuant to section 361,
subdivision (c)(1). We affirm the orders.
FACTS
Salvador (father) is the father of D., born in 2001, and Mitchell, born in 2005. In
July 2012, father shared a house with his children, his wife, Janet, his sister-in-law,
Martha, her husband, and their two daughters, Brittany, age 9, and B.J., age 6.
In August 2012, the Los Angeles County Department of Children and Family
Services (DCFS) received a report of sexual abuse. On July 18, 2012, Janet, D., and
Mitchell had returned home from church and were eating a meal in the kitchen. After
finishing her meal, Janet went into her bedroom to get a pair of shoes. The bedroom did
not have a door, only a curtain in the doorway. When she entered the bedroom, she saw
father with his shirt rolled up and B.J. facing father with her back to Janet. Father looked
startled and quickly pulled his shirt down in front of his crotch area. Although his shorts
were not pulled down, he appeared to be covering his penis with his shirt. B.J. then ran
out of the room. Janet asked him what he was doing. He did not reply and exited the
house. She followed him outside and continued to inquire what he had been doing with
B.J. She told him that he should leave if he was in trouble. Father then left in his car.
Janet told B.J.’s parents about the sexual abuse incident and they called the police.
B.J. told police father had put his penis into her mouth during the incident. She also said
he had touched her vagina over her clothing and put all of his fingers inside her vagina
and had been doing this almost every day since she was five years old. Father would do
this to her in his bedroom, his sons’ room, and outside. This often occurred while others
were around the house. She said she had never told anyone because she was scared to tell
and father had told her not to tell anyone. She said she finally told someone “because he
1
All further section references are to the Welfare and Institutions Code.
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would never stop.” B.J. said she was scared of father and terrified that he would come
back to her home. D. and Mitchell never saw father abuse B.J. and had no knowledge of
the abuse until the proceedings. They both stated that father never touched their private
parts or abused them in any way.
During an interview with police, father admitted putting his penis in B.J.’s mouth
during the incident, but he claimed B.J. had wanted to see his penis and put it in her
mouth. He claimed this was the first time he had done so. However, he also stated B.J.
had been touching his penis for approximately two months prior to the incident. He
claimed it started when B.J. entered his room, refused to leave, and began rubbing his
legs and penis on her own volition. He first denied ever touching B.J.’s vagina, but then
admitted to doing so when confronted with the possibility of DNA testing. Father also
admitted to exposing his penis to B.J. on one prior occasion.
This was not the first time father had been in trouble for sexual conduct with a
female minor. In 2003, father approached his 14-year-old female neighbor and invited
her out on a date. She told him she was not interested because he was married and had a
child. Father continued to talk and flirt with the victim. He then grabbed her hand, bent
over, and kissed the victim’s cheek. The victim moved away from father, and he left the
area. After a few minutes, father returned and sat down next to the victim on the
staircase to her apartment building. He asked her out again but was unsuccessful.
After asking the victim whether she would get mad at him, he grabbed her around the
neck with both hands and bit the victim’s upper and lower lips, causing them to swell and
bleed. During this incident, father rubbed the victim’s chest outside of her blouse.
The victim pushed him away. She began to cry uncontrollably and told father to leave
her alone. Father left the victim, only to return twice more to try to speak with her.
Both times the victim told him to leave her alone. Multiple witnesses corroborated the
victim’s story. Father claimed he did not attack the victim as she claimed. He stated he
had kissed the victim on the lips and she had kissed him back.
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DISCUSSION
I. The Jurisdictional Order
Father argues there was insufficient evidence to support the juvenile court’s
jurisdictional finding that there was a substantial risk D. and Mitchell would be sexually
abused based on father’s sexual abuse of his niece. We disagree.
Under section 300, subdivision (d), a child is within the jurisdiction of the juvenile
court when “there is a substantial risk that the child will be sexually abused . . . by his or
her parent or guardian or a member of his or her household.” Father argues that his
actions toward B.J. do not pose a threat of abuse toward D. and Mitchell because there is
no evidence he sexually abused his sons, and they were never aware of B.J.’s abuse.
Father claims there is a split of authority as to whether the sexual abuse of one
child places other non-victim children in the home similarly at risk. However, as DCFS
correctly points out, a recent California Supreme Court case has settled this dispute.
In In re I.J. (2013) 56 Cal.4th 766, the California Supreme Court held that a father’s
sexual abuse of his daughter could be used to show a substantial risk of abuse of his two
sons even “when there [was] no evidence the father sexually abused or otherwise
mistreated the boys, and they were unaware of their sister’s abuse before [the] proceeding
began.” (Id. at p. 770.) In that case, the father had sexually abused his daughter over the
course of three years, including by raping her. However, there was no evidence that the
father had ever sexually abused his two sons, and the sons were not aware of their sister’s
abuse prior to the proceedings. The court held that, despite the fact that the father’s other
daughter was at greater risk than his sons, “this does not mean the risk to the sons is
nonexistent or so insubstantial that the juvenile court may not take steps to protect the
sons from that risk.” (Id. at p. 780.) The court held that the father posed a substantial
risk to all of the children, in part because the sexual abuse of his daughter occurred
“while the other children were living in the same home and could easily have learned of
or even interrupted the abuse.” (Id. at p. 768.)
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This case is analogous. Father sexually abused his niece almost every day since
she was five years old. He sexually abused her in the house he shared with his family,
including outside the home, in his sons’ bedroom, and in a bedroom without a door.
Additionally, this abuse often occurred while the family was home. Similar to In re I.J.,
D. and Mitchell could easily have interrupted this abuse. Their gender or lack of
exposure to abuse does not negate the risk posed by living in the presence of their abusive
father, who refused to take responsibility for his actions and attempted to blame the
sexual encounters on the desires of a six year old. There is sufficient evidence to support
the juvenile court’s finding that D. and Mitchell were at substantial risk of being abused
while living with father. As such, we find no error by the juvenile court.
II. The Dispositional Order
Father also argues there was insufficient evidence to support the juvenile court’s
dispositional order removing custody of D. and Mitchell because there was no clear and
convincing evidence they were as risk of being sexually abused unless removed from
father’s custody. We disagree.
In general, a parent may not challenge the sufficiency of evidence supporting a
dispositional order if he or she did not raise the issue in the dependency court. (In re
N.M. (2011) 197 Cal.App.4th 159, 166; In re David H. (2008) 165 Cal.App.4th 1626,
1640.) Here, father did not raise his objection to the juvenile court’s dispositional below.
Therefore, we find that he has forfeited this claim.
Even if father has not forfeited this claim, we still find that the juvenile court had
substantial evidence to justify the removal from father’s custody. Under section 361,
subdivision (c)(1), a dependent child may not be taken from the physical custody of the
parents with whom the child resides at the time the petition was initiated unless the
juvenile court finds clear and convincing evidence “[t]here is or would be a substantial
danger to the physical health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no reasonable means by which
the minor’s physical health can be protected without removing the minor from the
minor’s parents . . . physical custody.” (§ 361, subd. (c)(1).) On appeal, we look to see
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whether there was substantial evidence to support a finding of risk and the absence of
alternative means to protect the children. (In re Henry V. (2004) 119 Cal.App.4th 522,
529.) In undertaking this review, “[t]he jurisdictional findings are prima facie evidence
that the child cannot safely remain in the home. (§ 361, subd. (c)(1).)” (In re Cole C.
(2009) 174 Cal.App.4th 900, 917.)
Here, we find there was substantial evidence to show D. and Mitchell were at risk
of sexual abuse unless they were removed from father’s custody. The juvenile found a
significant risk of harm under section 300, subdivision (d). As noted, father abused his
niece in his family’s home while others were present in the house. Although father never
abused D. or Mitchell, and they were never exposed to B.J.’s abuse, the juvenile court
reasonably concluded that father’s abuse of B.J. in close proximity to his sons created a
substantial risk of harm to them that would continue as long as they were in his custody.
We find no error in the juvenile court’s dispositional orders.
DISPOSITION
The orders are affirmed.
BIGELOW, P. J.
We concur:
FLIER, J.
GRIMES, J.
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