In re Tey. T. CA2/5

Filed 4/30/14 In re Tey. T. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re TEY. T., et al., Persons Coming B250449
Under the Juvenile Court Law. (Los Angeles County Super. Ct.
No. CK60784)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

E.C., et al.,

Defendants and Appellants.

APPEAL from the orders of the Superior Court of Los Angeles County, Zeke
Zeidler, Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant E.C.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for
Defendant and Appellant K.M.
Tarkian & Associates, Arezoo Pichvai, for Plaintiff and Respondent.
___________________________________
 K.M and E.C. (mother) appeal from the dependency court’s order declaring three
of their children, Tey., Sav., and Sas., dependents of the court under Welfare and
Institutions Code section 300,1 subdivisions (b), (d), and (j), and removing them from
parental custody under section 361, subdivision (c)(1) or (c)(4). K.M. contends the
court’s jurisdictional findings based on his now-adult stepdaughter’s allegations of sexual
abuse are not supported by substantial evidence. Mother contends the court denied her
due process by amending the petition, that the allegations of the amended petition are
facially insufficient, and that substantial evidence does not support the court’s
jurisdictional findings. Mother further contends the court erred in removing Sav. and
Sas. from her custody, and the court failed to consider reasonable alternatives to removal.
We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has six children. Tra., mother’s eldest daughter, is now 20 years old.
Mother’s two boys are Tre., 19, and Thi., 17. The youngest girls are Tey., 15, Sav., 7,
and Sas., 3. K.M. has lived with all six children, but is only the biological father to Sav.
and Sas. The other children’s biological father (T.T.) is not a party to this appeal.
The Los Angeles County Department of Children and Family Services
(Department) filed the current petition in December 2012, alleging that the four children
remaining in the home (Tre.,2 Tey., Sav., and Sas.) were at risk of physical harm or
sexual abuse based on K.M.’s actions raping Tra. over a two-year period beginning when
she was 16, mother’s awareness of the sexual abuse, mother’s failure to protect the

1All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.

2On May 15, 2013, the court dismissed Tre. from the petition because he had
turned 18.

2
children, and mother’s failure to provide the children with adequate amounts of food as a
form of punishment.
The current case is the family’s third dependency proceeding. The Department
filed the first petition in June 2006. Mother’s younger son, Thi., was nine at the time and
had been hospitalized twice for severe emotional disturbance and diagnosed with a
number of mental health disorders. Mother had initially entered into a voluntary family
maintenance contract, but then refused to cooperate and would not allow mental health
professionals to assist Thi. The Department filed a petition after Tra., Tre., and Tey.
reported suffering both physical and mental abuse. The dependency court detained the
children from mother and released them to T.T. The children had difficulties living with
T.T and eventually transitioned to foster care. Thi. continued to suffer from mental
health issues, and in December 2006, he was placed in a restrictive level 12 group home
after a mental health hospitalization. The court sustained the petition on April 3, 2007,
but in the interim, mother had given birth to Sav. in July 2006. Mother did not cooperate
with the Department’s requests to see Sav., and when the social worker attempted to visit
mother and K.M., the home was vacant and there was an eviction sign in the window.
The Department filed a petition on behalf of Sav., obtained a protective custody warrant,
located Sav., and placed the infant in foster care. On May 15, 2007, the court sustained a
supplemental petition filed on behalf of Sav. By July 2007, four of the siblings were
placed with the maternal aunt, and both mother and K.M. were participating in
reunification services. After enrolling in various parenting classes, Mother and K.M.
regained custody of all five children in January 2008, and the team providing mental
health wraparound services to Thi. was confident that mother would ensure continued
mental health services for him. The court terminated jurisdiction in July 2008.
The family again came to the Department’s attention in February 2011, when
mother left Thi. with T.T., who was unable to care for the boy. Thi. reported that he and
his siblings had not been to school in over four years, and mother and K.M. did not
provide enough food to the family. The Department was unable to locate the other
siblings, but filed a petition in May 2011 naming all six children. The court issued

3
protective custody warrants for the missing children and arrest warrants for mother and
K.M.
The Department was unable to locate the family until March 2012, when K.M.’s
mother called the Department to report that the children had been dropped off at her
home. The Department interviewed the children, who reported that they did not have
contact information for their parents, but that Thi.’s allegations were untrue. They
claimed to be properly homeschooled and denied any abuse. Mother and K.M. entered
into a voluntary contract with the Department, and the petition was dismissed in June
2012. Part of the contract was an agreement to enroll the children in school or in a
certified homeschooling program.
In August 2012, Tra. filed a police report with the Palmdale Sheriff’s Department
alleging K.M. had raped her on multiple occasions. In the police report, Tra. claimed that
the rape occurrences began when she was 16 and continued until May 2012. They took
place when mother was not home. In July 2012 and again in October 2012, the
Department received reports that Tra. had disclosed she had been sexually abused by
K.M. In both instances, social workers interviewed family members and concluded the
reports were unfounded.
The Department received another report about the family on December 16, 2012,
when Tre. and Tey. sought to leave the home to live with T.T. Four days later, T.T.
dropped Tra., Tre., and Tey. off at a Los Angeles police station, stating he was unable to
care for the children and that mother was still receiving financial assistance for them.
Tre. and Tey. reported going to mother’s home earlier that day to obtain a letter from
mother permitting T.T. to care for them, but she refused to let them into the house.
At the adjudication hearing, Tra. testified that K.M. first sexually abused her when
Sas. was an infant. He sent the other siblings to the park, and when Tra. was putting Sas.
down to sleep, “he was in there, and he came and got close to me. And, basically -- he
did oral to me and, like, climbed on top of me.” Afterwards, she told Tey., but did not
tell mother. On at least two occasions, K.M. penetrated her with his penis. The abuse

4
ended when she was placed in foster care as part of the 2011 case. She did not tell
anyone in the Department about the abuse because she was embarrassed.
Tey. testified that Tra. told her of the abuse, but she never witnessed K.M.
sexually abusing Tra. She said she originally denied knowing of any abuse because she
did not want to believe it. Mother testified she never left Tra. alone with K.M. and did
not believe that K.M. had abused Tra. as Tra. alleged.
The court found no evidence that mother had been told of the abuse, but also noted
that “the children didn’t really have a chance to express what was going on to the mother.
She discouraged any of that sort of communication.” The court amended the sex abuse
allegations under subdivisions (b), (d), and (j) to read as follows: “[K.M] sexually
abused the children’s now adult sibling [Tra.], for two years since the sibling was sixteen
years old by repeatedly forcibly raping the sibling by placing [K.M.’s] penis in the
sibling’s vagina. [Mother] does not believe the allegations failed to protect [Tra.] when
she knew of [K.M.’s] sexual abuse of the sibling. The mother allowed [K.M.] to reside in
the children’s home and to have unlimited access to [Tra.]. Such sexual abuse of the
sibling by [K.M.] and [mother’s] disbelief failure to protect the sibling endangers the
children's physical health and safety and places the children at risk of physical harm,
damage, danger, sexual abuse and failure to protect.” The court sustained the amended
sex abuse allegations.
The court also struck language that mother denied food to the children, but added
allegations that mother “failed to adequately provide for the children . . . .” Because the
amendments arguably broadened the allegations regarding mother’s failure to provide,
the court gave mother an opportunity to present additional evidence on the issue, which
she did. The court sustained the allegations that mother failed to adequately provide for
the children and ordered the children removed from parental custody. Both mother and
K.M. appealed.

5
 DISCUSSION

The dependency court properly exercised jurisdiction over Tey., Sav., and Sas.
based on the evidence supporting the petition allegations that K.M. repeatedly raped his
now-adult stepdaughter, Tra., over a period of two years, and mother did not believe her
daughter’s allegations of rape. We conclude that the petition allegations are sufficient to
state a cause of action, and substantial evidence supported the court’s exercise of
jurisdiction and the court’s removal order.
Because the court’s exercise of jurisdiction on the sex abuse allegations was
proper, we decline to consider mother’s arguments relating to the allegations of failure to
adequately provide for the children.3 “When a dependency petition alleges multiple
grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a
reviewing court can affirm the [trial] court’s finding of jurisdiction over the minor if any
one of the statutory bases for jurisdiction that are enumerated in the petition is supported
by substantial evidence. In such a case, the reviewing court need not consider whether
any or all of the other alleged statutory grounds for jurisdiction are supported by the
evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

A. The petition allegations are facially sufficient to state a cause of action.

Mother contends her disbelief that any sexual abuse had taken place is insufficient
to support jurisdiction because the petition lacks any allegations about the causal
connection between her disbelief and harm to the children. We disagree.
When reviewing the facial sufficiency of a dependency petition, the court
construes the facts in favor of the petition. (In re Janet T. (2001) 93 Cal.App.4th 377,
386; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133.) A parent has a fundamental

3 Inher briefing, mother argued that the court erred by (1) amending the petition
allegations, (2) denying mother’s motion to dismiss for failure to state a cause of action,
and (3) sustaining the petition allegations without substantial evidence.

6
due process right to notice of “‘the specific factual allegations against him or her with
sufficient particularity to permit him or her to properly meet the charge.’ [Citation.]” (In
re Fred J. (1979) 89 Cal.App.3d 168, 175, italics omitted.) “If the parent believes that
the allegations, as drafted, do not support a finding that the child is ‘within’ one of the
descriptions of section 300, the parent has a right to bring a motion ‘akin to a demurrer.’
[Citation.]” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1037.) A facially sufficient
petition “does not require the pleader to regurgitate the contents of the social worker’s
report into a petition, it merely requires the pleading of essential facts establishing at least
one ground of juvenile court jurisdiction.” (In re Alysha S. (1996) 51 Cal.App.4th 393,
399-400 (Alysha S.).)
The petition initially alleged mother was aware K.M. sexually abused her oldest
daughter, Tra., mother continued to permit K.M. to reside in the home with unlimited
access to Tra., and mother’s awareness and failure to act placed the younger siblings at
risk of physical harm or sexual abuse. The evidence presented during the adjudication
hearing did not demonstrate mother’s awareness of any sex abuse, but it did show that
when mother was informed of Tra.’s allegations, she disbelieved them. The court
amended the petition to allege that mother’s disbelief placed the younger siblings at risk
of physical harm or sexual abuse.
Mother’s disbelief of her daughter’s allegations against K.M. suffices as the causal
connection between K.M.’s past abuse of Tra. and the risk of future harm to Tey., Sav.,
and Sas. A parent’s disbelief of a child’s report of sexual abuse is a valid basis for
exercising jurisdiction over the siblings of an abused child. (In re D.G. (2012) 208
Cal.App.4th 1562, 1570 (D.G.); In re Katrina W. (1994) 31 Cal.App.4th 441, 447
(Katrina W.).) In D.G., the appellate court affirmed orders finding jurisdiction over the
father’s older stepdaughter and younger biological daughter based on “substantial
evidence that (1) Father sexually molested [the stepdaughter]; (2) Mother denies that the
abuse occurred; and (3) Father’s abuse and Mother’s denial place both [stepdaughter] and
[biological daughter] at risk of harm.” (D.G., supra, at p. 1570.) Where a father has
molested one stepdaughter and the mother denies or disbelieves that such molestation

7
took place, jurisdiction is supported under subdivisions (b), (d) and (j) “based on a
substantial risk that [other minor girls in the household] will suffer serious physical harm
as a result of the failure or inability of Mother to adequately protect them.” (Id. at p.
1573.) The D.G. court relied on an earlier case, Katrina W., which upheld jurisdiction as
to both parents where the father had molested his daughter and the mother was in denial
of molestation. The Katrina W. court reasoned that the mother’s disbelief the father had
done anything improper supported a finding of risk because other reports of future abuse
might also be ignored by the mother. (Katrina W., supra, at p. 447.)
Mother relies on the holding in Alysha S., supra, 51 Cal.App.4th 393, to argue that
an allegation of inappropriate touching, without allegations of additional facts
demonstrating that the minor is likely to suffer serious physical harm, is insufficient to
support jurisdiction under subdivision (b) of section 300. (Id. at pp. 398-399.) Contrary
to the reasoning in Alysha S., more recent cases uphold jurisdiction on the grounds that
sexual abuse of one sibling over a period of time places the siblings of the abuse victim at
risk of substantial harm under subdivisions (b), (d), and (j). (See, e.g., In re I.J. (2013) 56
Cal.4th 766 (I.J.) [affirming jurisdiction over male siblings of abuse victim under
subdivision (j)]; Los Angeles County Dept. of Children & Family Services v. Superior
Court (2013) 215 Cal.App.4th 962, 968, fn. omitted [directing lower court to sustain
petition under subdivisions (b), (d), and (j) because “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”]; In re P.A. (2006) 144 Cal.App.4th
1339, 1345-1347 [affirming jurisdiction under subdivisions (b) and (d) because “aberrant
sexual behavior by a parent places the victim’s siblings who remain in the home at risk of
aberrant sexual behavior”].) Consistent with these cases, we conclude that the allegations
of sexual abuse and mother’s disbelief are sufficient to state a cause of action under
subdivisions (b), (d), and (j) of section 300.

8
B. Substantial evidence supports the dependency court’s jurisdictional finding that
the children are at substantial risk of harm.

Viewed in the light most favorable to the court’s jurisdictional findings, there is
substantial evidence that K.M. sexually abused Tra., that mother disbelieved such abuse
had occurred, and that K.M.’s abuse and mother’s disbelief put Tey., Sav., and Sas. at
substantial risk of physical harm or sex abuse.
Subdivision (b) of section 300 supports dependency court jurisdiction if a child
has suffered, or there is a substantial risk the child will suffer, serious physical harm or
illness as a result of the parent’s failure to adequately supervise or protect the child.
Subdivision (d) of section 300 supports dependency court jurisdiction when a “child has
been sexually abused, or there is a substantial risk that the child will be sexually abused,
as defined in Section 11165.1 of the Penal Code, by his or her parent . . . .” Subdivision
(j) of section 300 provides a basis for dependency court jurisdiction 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.” In determining jurisdiction under subdivision (j), the court must “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 factors the court considers probative in determining
whether there is a substantial risk to the child.” (§ 300, subd. (j); In re Maria R. (2010)
185 Cal.App.4th 48, 64, disapproved of on another ground by I.J., supra, 56 Cal.4th at
pp. 778-779.) Jurisdiction is warranted when a child is at risk of abuse, not only when
the child has actually been abused. (See § 300, subds. (a), (b), (d), and (j).) We apply the
substantial evidence standard of review when considering a challenge to the sufficiency
of the evidence supporting the court’s jurisdictional findings. “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

9
favorable to the court’s determinations; and we note that issues of fact and credibility are
the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
In this case, Tra. reported to social workers and testified that K.M. had repeatedly
raped her over the course of two years beginning when she was 16 years old, and the
court found her testimony to be credible. K.M. argues that Tra.’s testimony was
inherently improbable because K.M. has a large scar on his pelvis and is missing one
testicle, but Tra. answered “no” when asked whether there was anything distinct about
father’s “private parts” that stood out to her. (See Evje v. City Title Ins. Co. (1953) 120
Cal.App.2d 488, 492 [for doctrine of inherent improbability to warrant reversal of a
judgment resting on witness statements, “there must exist either a physical impossibility
that they are true, or their falsity must be apparent without resorting to inferences or
deductions”].) Nothing in the record supports K.M.’s argument that Tra.’s testimony is
“inherently improbable.” Her response to the question of whether there was anything
distinct about K.M.’s anatomy does not demonstrate that her version of events was
physically impossible, and a court would need to make certain inferences to find false her
testimony about K.M.’s sexual abuse. She was never asked whether she had viewed
K.M.’s “private parts” in circumstances or lighting that made it impossible for her to not
notice the presence of a scar or the absence of a testicle. It would be reasonable for the
court to still find Tra. credible given her detailed and consistent testimony, and we
decline to usurp the court’s role as fact-finder “[u]nder the guise of inherent
improbability . . . .” (In re S.A. (2010) 182 Cal.App.4th 1128, 1150.)
Mother does not challenge the trial court’s findings that K.M. sexually abused
Tra., but rather contends that the jurisdictional findings are erroneous because there is no
evidence any of the children have suffered any physical harm. She also contends that
because she did not know or have any reason to know of the abuse, her disbelief is
insufficient to support a jurisdictional finding against her.
We reject mother’s argument that the court lacks jurisdiction because the
Department presented no evidence that the minors had suffered actual harm. “[S]ection
300 does not require that a child actually be abused or neglected before the juvenile court

10
can assume jurisdiction.” (I.J., supra, 56 Cal.4th at p.773.) “[A]berrant 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, 215 Cal.App.4th at p. 970.)
Numerous courts have held that sexual abuse of one child constitutes substantial evidence
of risk to the child’s siblings who remain in the household, even if the other child is a
different gender or age or is a half sibling. (See id. at pp. 968-970 [reviewing cases
sustaining petition allegations as to male and female siblings and half-siblings based on
abuse of one child in household].) In I.J., the California Supreme Court affirmed the
trial court’s jurisdictional findings as to the younger male siblings of a 14-year-old girl
who had been sexually abused by her father for three years, even though there was no
evidence or claim that the father had “sexually abused or otherwise mistreated his three
sons, and the evidence indicates that they had not witnessed any of the sexual abuse and
were unaware of it” before the dependency proceeding began. (I.J., supra, 56 Cal.4th at
p. 771.) Acknowledging disagreement among the Courts of Appeal, the California
Supreme Court concluded that a finding of sexual abuse of a child of one gender may be
sufficient to support a finding of risk as to children of a different gender. “‘When a
parent abuses his or her child, . . . the parent also abandons and contravenes the parental
role. Such misparenting is among the specific compelling circumstances which may
justify state intervention, including an interruption of parental custody. [Citation]’
[Citation.]” (Id. at p. 778.) Here, the court sustained petition allegations supporting
jurisdiction over three female children living in the same household, a decision that is
supported by the facts of this case and the case law involving sex abuse allegations.
We also reject mother’s argument that the court erred in asserting jurisdiction
based on evidence mother disbelieved Tra.’s allegations of sex abuse. Mother relies
heavily on the argument that because two social workers disbelieved Tra.’s allegations of
abuse, mother cannot be faulted for her disbelief. Tra. first reported in July 2012 that
K.M. had sexually abused her for two years and the abuse ended when the children were
detained in 2011. Three different social workers investigated the purported abuse. The

11
social workers conducting investigations in July and October of 2012 concluded that
Tra.’s allegations were unfounded. The third social worker found the allegations
believable and initiated the proceedings that are the subject of the current appeal. While
there are arguable inconsistencies in Tra.’s reports and testimony, the trial court resolved
the ultimate credibility issue in favor of Tra.’s version and that determination is binding
on appeal.
As discussed earlier in this opinion, a mother’s disbelief that her child has been
sexually abused can support a jurisdictional finding based on the theory that there is
substantial risk that she will fail to protect the child or her siblings from similar abuse in
the future. Once the court found Tra.’s testimony regarding abuse credible, there was
sufficient evidence to sustain its jurisdictional findings with respect to Tey., Sav., and
Sas. (Los Angeles County Dept. of Children & Family Services v. Superior Court, supra,
215 Cal.App.4th at pp. 965, 966, 968.)

C. Substantial evidence supports the dependency court’s order removing the
minors from both parents.

Mother contends the court erred when it removed Sav. and Sas.4 from her custody,
because she was willing to abide by a court order prohibiting K.M. from residing in her
home. Mother argues that there was no evidence that removal was necessary for the
protection of the children, and that the court did not consider reasonable alternatives.
Before a child can be removed from parental custody, the Department must prove,
by clear and convincing evidence, “[t]here is or would be a substantial danger to [her]
physical health, safety, protection, or physical or emotional well-being if [she] were
returned home” and removal is the only reasonable means of protecting her physical
health. (§ 361, subd. (c)(1).) A court may also remove a child from parental custody
after finding by clear and convincing evidence that “[she] is deemed to be at substantial

4 Motherdoes not contend the court erred in ordering Tey. to remain removed
from her custody.

12
risk of being sexually abused . . . , and there are no reasonable means by which [she] can
be protected from . . . a substantial risk of sexual abuse without removing [her] from . . .
her parent . . . .” (§ 361, subd. (c)(4).) “‘The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus . . . is on
averting harm to the child. [Citations.]’” (In re Miguel C. (2011) 198 Cal.App.4th 965,
969.) We review a dispositional order removing a child from a custodial parent for
substantial evidence. (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
There was sufficient evidence that Sav. and Sas. were at substantial risk of being
harmed if they were returned to mother’s custody. Mother’s argument rests on her
promise to discontinue living with K.M. if the court sustained the sex abuse allegations
against him. However, mother has a less than stellar record of keeping her promises, and
her earlier actions provide sufficient evidence to support the court’s findings that Sav.
and Sas.’s removal was necessary for their protection.
The record includes evidence that mother previously promised to take corrective
action, but then failed to follow through on such promises. In the 2006 dependency case,
mother had initially entered into a voluntary family maintenance contract, but then
refused to cooperate and would not allow mental health professionals to assist Thi., who
had serious mental health problems. The record also contains no evidence that she
continued with the mental health services that were being provided when the court
terminated jurisdiction over the matter in 2008, although the Department clearly
contemplated that such services would continue. In the case plan for the 2011
dependency proceeding, mother had agreed to enroll the children in school or a certified
homeschooling program, but then failed to do so.
Also, the family has a documented history of failing to cooperate with efforts to
protect the younger children in the family. Sas. was born while the 2006 dependency
case was pending, but mother refused to permit the Department to visit Sas. In the 2011
dependency proceeding, the court had to issue protective warrants for all the children
except for Thi., who was already in protective custody. The family managed to evade the
Department for almost a full year, and the Department only detained the children after

13
their paternal grandmother called to advise the Department that mother and K.M. had
dropped the children off at her home. The parents left no contact information with their
children.
Mother does not believe K.M. sexually abused her older daughter, she has been
unwilling or unable to provide adequate mental health support for Thi., and she has a
documented history of attempting to avoid or evade Department scrutiny. When all these
circumstances are considered together, there is substantial evidence to support the court’s
determination that it was necessary to remove Sav. and Sas. from mother’s custody and
the Department had met the criteria of section 361(c)(1) or (4) by clear and convincing
evidence.

DISPOSITION

The dependency court’s jurisdictional findings and dispositional orders are
affirmed.

KRIEGLER, J.

We concur:

MOSK, Acting P. J. MINK. J. *

* Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

14