IN RE: E.L. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

R.G. (mother) appeals jurisdictional findings made with respect to E.L. We reject mother's claim the evidence does not support the juvenile court's finding E.L. was at substantial risk of harm in mother's care and affirm the orders of the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

1.  The detention of E.L.

The family came to the attention of the Department of Children and Family Services (the Department) on August 19, 2010, after mother and C.L. (father) were arrested for crimes against E.L.'s maternal cousins, P. and K. Father was arrested for committing lewd acts on both children (Pen.Code, § 288, subd. (a)) and mother was arrested for pimping then 15-year-old P. (Pen.Code, § 266h, subd. (b)(2)).   The maternal cousins reported this abuse approximately one year after the maternal cousins and their mother moved from mother and father's home after residing with them for 12 years.

Los Angeles Police Detective Rodriguez told the social worker that K., age 18 years, reported father began touching her breasts and vaginal area over her clothing when she was eight years of age and he continued to do so until she moved from the home.   P., age 17 years, reported father fondled her breasts under her clothing while she slept on two occasions when she was 16 years old.   P. also stated that, when she was 15 years old, she began working as a prostitute at a massage parlor after mother took P. to a swap meet and helped her get a fake identification card.   Mother transported P. to and from work and constantly asked P. for money.

The Department placed nine-year-old E.L. in foster care and filed a dependency petition alleging E.L. came within Welfare and Institutions Code section 300, subdivisions (b) and (d), in that she was at risk of neglect and sexual abuse.¹

The police report attached to the detention report indicated K. stated father threatened to harm her if she said anything about the abuse.   P. told the detective that, when she was 15 years old, she confided in mother that she had been sexually intimate with her boyfriend.   Mother told P. not to have sex with her boyfriend anymore and convinced P. she should use men for money because she no longer was a virgin.   After searching Spanish language advertisements, mother told P. they were looking for girls who were 18 years of age.   Mother helped P. get a fake identification card at a swap meet, drove her to a massage parlor in Gardena and told her to go inside for an interview.   P. was greeted by a Korean male who explained the job included having sex with men for money.   P. walked out but mother eventually convinced P. to work at the massage parlor.   When mother drove P. back to Gardena, the Korean male took P. to a nearby residence where she had sex with two separate men and was paid $200.   When mother picked her up, she asked P. to give her $100 and P. complied.   Mother drove P. to the location to perform sex acts on several occasions.   On one occasion, father went with them.   Mother constantly asked P. for money and would get upset or not speak to P. if she did not get money.

The social worker spoke to mother at Newton Division after her arrest.   Mother admitted she took P. to a swap meet to get a fake identification card, that P. thereafter worked at a Korean massage parlor in Gardena for three months, and that P. gave mother $50 a week to pay for gas to drive P. to work.   However, mother denied she ever asked P. for money or forced P. to give her money.   Mother claimed she was not aware P. was engaging in prostitution and denied she encouraged P. to engage in prostitution.   Mother stated she was unaware father had molested P. and K. and claimed the girls were lying.

E.L. stated father never touched her inappropriately and she had never witnessed father touching P. or K. inappropriately.   E.L. stated mother and father were nice to her.   An addendum report indicated E.L. told the social worker she had never been away from mother, she wanted to return home, mother had never hit her and father had always loved her.

2. The detention hearing.

At the detention hearing, mother testified she and father were not E.L.'s biological parents.   Mother stated that mother's cousin, the mother of P. and K., was friends with E.L.'s biological mother when she was pregnant with E.L. and knew E.L.'s biological mother did not want to keep the child.   Mother's cousin persuaded E.L.'s biological mother to give the baby to mother.   E.L.'s biological mother registered at the hospital in mother's name and, after E.L. was born, C.L. signed the birth certificate as E.L.'s father.   Mother and father took E.L. home from the hospital and have cared for her since.   Mother stated she loved E.L. and want her to be returned.

The juvenile court made a tentative finding that mother and father were E.L.'s presumed parents.

3. The jurisdiction report.

The jurisdiction report indicated father remained in jail on $100,000 bail.   Mother posted a $3,000 bond and was released on September 11, 2010.   The Department indicated mother also was the subject of an Immigration Detainer/Notice of Action dated September 24, 2010, pursuant to which mother was to be deported.

The social worker interviewed E.L. on September 14, 2010, at her foster care placement.   E.L. indicated she knew P. was sleeping with men for money but claimed mother did not know what P. was doing and mother only transported P. to her job at a massage parlor where P. got towels and translated.   E.L. denied that father had ever touched her inappropriately and denied physical abuse.   E.L. cried and said she missed her parents and wanted to be with them.

Mother was living in San Pedro with E.L.'s godmother, R.L. Father remained in jail.   Detective Rodriguez advised the social worker he once telephoned mother and R.L.'s daughter answered the phone in Korean.   Rodriguez believed R.L. and her daughter were involved in prostitution involving minors.   Detective Rodriguez opined mother would flee to Mexico if E.L. were released to her.

The report indicated both parents were cooperative during the investigation, they appeared concerned for E.L.'s well-being and both parents cried when speaking about her.

4. The jurisdiction hearing.

On October 5, 2010, the juvenile court found E.L. a dependent child within the meaning of section 300, subdivisions (b) and (d).  The court sustained counts b-3, d-1 and d-2 as pleaded.

Count b-3 alleged mother placed E.L.'s maternal cousin, P., in a detrimental and endangering situation in that mother caused then 15-year-old P. to engage in sexual relations with adult men in exchange for money.   Mother assisted P. in obtaining a false identification card for the purpose of engaging in prostitution and collected a portion of P.'s earnings from prostitution.   Mother's conduct endangered E.L.'s physical and emotional health and safety, and placed the child at risk of physical harm, emotional harm and sexual abuse.

Count d-1 alleged father sexually abused E.L.'s maternal cousin, P., for a period of one year when the maternal cousin was 16 years old by fondling the child's breasts.   Count d-2 alleged father sexually abused E.L.'s maternal cousin K. by fondling K.'s vagina and breasts from the age of 8 to 17 years.   Father threatened to harm K. if she disclosed the sexual abuse by the father.   Both counts alleged the sexual abuse of the maternal cousins by father endangered E.L.'s physical and emotional health and safety, and placed the child at risk of physical harm, emotional harm and sexual abuse.

The juvenile court dismissed counts b-1 and b-2, which were worded identically to counts d-1 and d-2, stating it believed the conduct alleged in these counts came within section 300, subdivision (d), rather than subdivision (b), and “there is no allegation of a failure to protect on the mother's part.”

The juvenile court indicated mother's conduct clearly put E.L. at risk of harm.   Further, although E.L. sees mother and father as her parents, “the reality is that they're not her biological parents.”   The juvenile court found mother and father's conduct indicated there was a “likelihood” E.L. would be mistreated.   The juvenile court stated, “I don't see any reason that what they did to [P. and K.] wouldn't happen to [E.L.] I absolutely believe [she is] at risk.  [E.L.] is approaching the age where these acts happened by the father, and also the mother.”   Citing In re P.A. (2006) 144 Cal.App.4th 1339, which held sexual abuse of one child places siblings who are approaching the age at which the child was abused at risk of sexual abuse, the juvenile court found E.L. at risk of harm based on the conduct of both mother and father.  “As far as [I am] concerned mother is as much a perpetrator of sexual abuse of the minor [P.] as the father is.”

The juvenile court granted mother and father family reunification services consisting of individual counseling to address case issues as well as sexual abuse awareness counseling.   The juvenile court ordered individual counseling for E.L. and conjoint counseling with mother and father when appropriate.

Mother appealed the jurisdictional and dispositional orders.

CONTENTIONS

Mother contends there is insufficient evidence to support the dependency finding under section 300, subdivision (b) in that the conduct attributed to mother did not place E.L. at substantial risk of serious harm.

DISCUSSION

1.  The juvenile court properly exercised jurisdiction.

Mother contends she is a nonoffending parent as to counts d-1 and d-2 and that her alleged conduct with respect to P. did not place E.L. at substantial risk of serious physical harm or illness within the meaning of section 300, subdivision (b).  Mother claims E.L. was not at risk of neglect of any type.   Mother notes she and father took custody of E.L. at birth, E.L. denied physical abuse, there were no marks or bruises on the child and there was no evidence of emotional damage to E.L. Mother and father wanted E.L. returned and the Department reported they appeared concerned about her and cried when they spoke of her.   Mother also claims the allegations of count b-3 inappropriately encompassed language specific to other subdivisions, such as section 300, subdivision (d) (sexual abuse).

Mother's claims are meritless.   Initially, we note mother concedes jurisdiction properly was exercised with respect to father under section 300, subdivision (d).  When one parent is unsuitable, the juvenile court may find a child comes within section 300 even if the other parent claims to be suitable.  (In re Alexis H. (2005) 132 Cal.App.4th 11, 16;  In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“a jurisdictional finding good against one parent is good against both”];  In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.)   Because the evidence supports the juvenile court's exercise of jurisdiction as to father under section 300, subdivision (d), we need not consider mother's contention that jurisdiction was not properly exercised under subdivision (b).  Nonetheless, it is obvious that jurisdiction also was proper as to mother.

A child may be determined a dependent under section 300, subdivision (b) when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child ․“ (§ 300, subd. (b).)  The standard of proof at the jurisdictional stage of a dependency proceeding is a preponderance of the evidence, and we affirm the juvenile court's findings if they are supported by substantial evidence.  (In re P.A., supra, 144 Cal.App.4th at p. 1344.)

Here, the evidence before the juvenile court supported the juvenile court's finding E.L. was at substantial risk that mother would sexually exploit E.L. as she had exploited P. As noted by the juvenile court, In re P.A., supra, 144 Cal.App.4th 1339, held a father's sexual abuse of a nine-year-old daughter placed the child's male siblings at risk of harm.  (See also In re K.R. (2001) 95 Cal.App.4th 84 [a father who committed incestuous rape of his daughter reasonably could be said to be so sexually aberrant that both male and female siblings were at substantial risk of abuse in the same home].)   Additionally, as the juvenile court pointed out, E.L. was approaching the age at which mother abused P. Thus, substantial evidence supports the juvenile court's conclusion E.L. was at risk of harm in mother's care.

Mother argues the juvenile court's finding “amounts to mere unsupported speculation” because mother had cared for E.L. for nine years without incident.   Mother claims In re P.A. and In re K.R. are distinguishable in that mother's relationship with P. and K. is more attenuated than the relationship between the parent and the abused children at issue in those cases.   Mother asserts her case is more similar to In re V.M. (2010) 191 Cal.App.4th 245, 254, which reversed dependency jurisdiction over a child who had never been abused or neglected by anyone.

Mother's attempt to distinguish In re P.A. and In re K.R. is not persuasive.   Although P. and K. were not mother and father's biological children, neither was E.L. Further, P. and K. were mother's biological relatives and the children lived in the home of mother and father for 12 years before they moved away.   Thus, although mother and father had a meaningful, familial relationship with these children, mother and father nonetheless abused and exploited them.   Because E.L. similarly was not mother and father's biological child, the natural abhorrence that might be expected to prevent sexual abuse or exploitation of one's own child is not a factor here.   Thus, the juvenile court reasonably could conclude E.L. was at risk of harm in mother and father's care.

To the extent mother seeks to rely on In re Maria R. (2010) 185 Cal.App.4th 48, 63, which disagreed with In re P.A. and held male siblings of sexually abused female children were not at risk of sexual abuse (see also In re Rubisela E. (2000) 85 Cal.App.4th 177), mother's reliance is misplaced.   Because E.L. and the abused children all are females, In re Maria R. is not on point.

To the extent mother argues the sustained allegations of count b-3 did not allege neglect within the meaning of section 300, subdivision (b), but alleged sexual abuse within the meaning of section 300, subdivision (d), the distinction does not require reversal of the juvenile court's finding on count b-3.   Indeed, we agree the facts stated in count b-3 would have supported a finding of dependency under section 300, subdivision (d), which arises if “[t]he 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 or guardian ․“ (§ 300, subd. (d).)  Penal Code section 11165.1, subdivision (c)(2) defines sexual abuse to include “sexual exploitation” by knowingly permitting a child to engage in prostitution.  (Pen.Code, § 11165.1, subd. (c)(2).)   Because the juvenile court found E.L. was at risk of sexual exploitation by mother, the juvenile court could have asserted dependency jurisdiction as to mother under section 300, subdivision (d) based on its conclusion E.L. was at risk of being mistreated in the same manner that P. had been mistreated.   However, this does not mean the juvenile court's assertion of jurisdiction under section 300, subdivision (b) was inappropriate.   Risk of sexual exploitation is merely a specific manner of neglect and thus supports the dependency finding under section 300, subdivision (b).

Finally, contrary to mother's assertion, In re V.M. is not analogous to her case.  In re V.M. involved a child who was the subject of a custody dispute between a maternal grandmother and a father after the mother passed away.   The juvenile court dismissed all dependency allegations against the father.   Nonetheless, the juvenile court drafted and sustained a new allegation that alleged the child would suffer detriment if forced to leave the care of the maternal grandmother and reside with the father.   In this case, the juvenile court sustained the dependency allegations of counts b-3, d-1 and d-2 as pleaded and substantial evidence supports the juvenile court's finding mother and father's abuse of P. and K. demonstrated E.L. was at risk of abuse in their care.

In sum, the record substantially supports the orders of the juvenile court.

DISPOSITION

The orders of the juvenile court are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Subsequent unspecified statutory references are to the Welfare and Institutions Code..  FN1. Subsequent unspecified statutory references are to the Welfare and Institutions Code.

CROSKEY, J. ALDRICH, J.