MOSK
Petition granted.
See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 540. ORIGINAL PROCEEDING. Petition for Extraordinary Writ. Mark A. Borenstein, Juvenile Court Judge. Petition granted. (Super.Ct. No. CK93144) John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, David Saft, Principal Deputy County Counsel, Kimberly A. Roura, Senior Associate County Counsel, for Petitioner.
Law Office of Alex Iglesias, Sonia Salazar, for Real Party in Interest, Father V.R.
Law Office of Marlene Furth, Jessica Morgan, for Real Party in Interest, Mother A.C.
MOSK, J.
INTRODUCTION
Petitioner Department of Family and Children's Services (DCFS) seeks a writ of mandate to set aside respondent juvenile court's order dismissing a petition under Welfare and Institutions Code section 300, subdivisions (a), (b) and (j) as to 10–year–old female K.R., despite the respondent's finding that real party in interest, her father V.R., sexually abused her elder half sister, N.C., for five years, including at the same age that K.R. is now. Because we hold that the trial court erred in dismissing the petition, we grant the petition for writ of mandate.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We conclude that the juvenile court erred in dismissing the section 300 petition as to K.R. because the evidence established that she was at risk for sexual abuse by father. Therefore, the juvenile court should have sustained the petition as to K.R., rather than dismiss it.
Cases 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. ( In re I.J. (2013) 56 Cal.4th 766, 156 Cal.Rptr.3d 297, 2013 WL 1908649; In re Andy G. (2010) 183 Cal.App.4th 1405, 107 Cal.Rptr.3d 923 [two-year-old boy at risk because father sexually abused the boy's 12–year–old and 14–year–old half sisters]; In re P.A. (2006) 144 Cal.App.4th 1339, 51 Cal.Rptr.3d 448 [sexual abuse of daughter could be found to pose risk of sexual abuse to younger brothers]; In re Karen R. (2001) 95 Cal.App.4th 84, 91, 115 Cal.Rptr.2d 18 [rape of 13–year–old daughter reasonably could be found “to be so sexually aberrant” that both male and female children siblings of the victim are at substantial risk of sexual abuse]; In re Rubisela E. (2000) 85 Cal.App.4th 177, 101 Cal.Rptr.2d 760 [sexual abuse of 13–year–old daughter supports finding of risk to 9–year–old daughter]; In re Joshua J. (1995) 39 Cal.App.4th 984, 46 Cal.Rptr.2d 491 [father who sexually abused a six-month-old boy poses risk of sexual abuse to newborn son]; In re Dorothy I. (1984) 162 Cal.App.3d 1154, 209 Cal.Rptr. 5 [jurisdiction based on abuse of half sister 15 years earlier]; see also In re Marianne R. (1980) 113 Cal.App.3d 423, 169 Cal.Rptr. 848 [in dependency proceeding concerning daughter, evidence of sexual abuse of stepdaughter by father admissible].)
The Supreme Court granted review in connection with whether male siblings of sexually abused females are at risk. ( In re I.J. (2012)147 Cal.Rptr.3d 325, 286 P.3d 147.)
In In re Ana C. (2012) 204 Cal.App.4th 1317, 1332, 139 Cal.Rptr.3d 686, the father had sexually abused the 11–year–old daughter of a cohabitant. The court, in affirming the juvenile court's decision sustaining allegations under section 300 of the risk of sexual abuse to the son, said, “In our assessment, [the father's] current case most closely fits the model of In re Karen R., supra, 95 Cal.App.4th 84, 115 Cal.Rptr.2d 18 in that [the father's] conduct has been ‘so sexually aberrant’ to support the commonsense conclusion that most every person in the family home was at risk of sexual abuse.” The court in In re P.A., supra, 144 Cal.App.4th at page 1347, 51 Cal.Rptr.3d 448, supported its conclusion that the sexual abuse of a daughter supported an inference that her younger male siblings were at risk of abuse by referring to section 355.1, which provides in part, “(d) Where the court finds that either a parent, a guardian, or any other person who resides with, or has the care or custody of, a minor who is currently the subject of the petition filed under Section 300(1) has been previously convicted of sexual abuse as defined in Section 11165.1 of the Penal Code... [or] (3) has been found in a prior dependency hearing or similar proceeding in the corresponding court of another state to have committed an act of sexual abuse, ... that finding shall be prima facie evidence in any proceeding that the subject minor is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is at substantial risk of abuse or neglect. The prima facie evidence constitutes a presumption affecting the burden of producing evidence.” The court said that “[a]lthough section 355.1, subdivision (d), was not triggered here because there was no prior dependency proceeding at the time of the jurisdictional hearing, it nonetheless evinces a legislative determination that siblings of sexually abused children are at substantial risk of harm and are entitled to protection by the juvenile courts.” ( In re P.A., supra, 144 Cal.App.4th at p. 1347, 51 Cal.Rptr.3d 448.) Here, section 355.1 is not directly applicable, but the principle of protection of children from the risk of sexual abuse is useful.
In In re Ricky T. (2013) 214 Cal.App.4th 515, 154 Cal.Rptr.3d 172, the court held that there was substantial evidence that a grandfather's criminal conviction for sexual abuse of step-granddaughters, which evidence gave rise to the presumption under section 355.1 that his grandson was at a substantial risk of abuse. But the court also followed a “line of cases” that held “ ‘aberrant sexual behavior by a parent places the victim's siblings who remain in the home at risk of aberrant sexual behavior. [Citations.]’ ” ( In re Ricky T., supra, 214 Cal.App.4th at p. 523, 154 Cal.Rptr.3d 172.)
It is true, as stated by the juvenile court, that the cases to which we refer affirmed orders finding jurisdiction and held that there was substantial evidence to support the juvenile courts' jurisdiction. And the Supreme Court has said that “[i]n upholding the assertion of jurisdiction in this case, we are not holding that the juvenile court is compelled, as a matter of law, to assume jurisdiction over all the children whenever one child is sexually abused.” ( In re I.J., supra, ––– Cal.4th at p. ––––, 156 Cal.Rptr.3d 297.) Here, the juvenile court found that there was insufficient evidence to support the allegations that K.R. was at risk of abuse. Thus, the issue is whether, as DCFS contends, there was sufficient evidence to establish those allegations. Undoubtedly, appellate courts have rarely if ever been faced with a situation in which a father sexually molests one female minor in the household and the juvenile court does not find another female minor in the household to be at risk. The cases cited categorically state that aberrant 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. (See In re Ana C., supra, 204 Cal.App.4th at p. 1332, 139 Cal.Rptr.3d 686.)
The juvenile court's finding that there has been “time” (about 5 to 6 years) since father last abused his stepdaughter N.C., does not provide sufficient evidence in support of dismissal as to K.R. (See In re Dorothy I . , supra, 162 Cal.App.3d at p. 1157, 209 Cal.Rptr. 5.) Father has denied the abuse despite the evidence from N.C. that convinced the juvenile court that father abused her. The trial court found that father's testimony lacked credibility. Father has not yet completed any sexual abuse education, which he was required to complete. Further, the evidence showed that it was mother's installation of locks on the doors and taking father's key that likely stopped the abuse, not any change in father's desire for sex with preteen girls.
The changes in the family circumstances have also placed K.R. at greater risk. Currently, father is not living with mother. This places K.R. at greater risk without juvenile court jurisdiction because, absent juvenile court supervision, K.R. could be spending time alone with father away from mother's home, thereby providing greater opportunity for sexual abuse. The object of his predatory actions, N.C., is no longer available to him. N.C. expressed concern that father might abuse K.R. as she matures physically, observing that he showered and bathed K.R. notwithstanding K.R.'s age. Moreover, the juvenile court found that father had extensively sexually abused N.C., beginning when she was seven or eight years old and continuing for about five years. K.R. is now 10 years old.
The juvenile court's distinction between a stepdaughter and a biological daughter is contrary to the holdings and language of the cases that suggest sexual abuse of one child in the household puts at risk other children in the household. As one authority has written, “ ‘Incest,’ as used herein encompasses not only sexual relations between a child and a biological parent, but also between a child and an adult who has assumed a parenting role towards the child, whether that adult is married or cohabits with the child's parent....” (Wilson, The Cradle Of Abuse: Evaluating the Danger Posed By A Sexually Predatory Parent To The Victim's Siblings (2002) 51 Emory L.J. 241, fn. 1.) Thus, the grounds specified by the juvenile court did not support its decision to dismiss the petition as to K.R., and there was no other evidence supporting that decision.
DISPOSITION
The court issues a peremptory writ of mandate directing respondent court to vacate its March 13, 2013, order dismissing the petition as to K.R. under section 300, and enter a new order sustaining the petition as to K.R. We concur:
TURNER, P.J.
O'NEILL, J. -------- Notes:
Judge of the Superior Court of the County of Ventura appointed by the Chief Justice pursuant to article VI, section 6 of the California Constitution.