IN RE: T.A. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

D.A. (mother) and Duane A. (father;  collectively “the parents”) challenge juvenile court orders asserting jurisdiction over their two children, T.A. and K.A. (collectively “the children”), removing the children from their custody, and setting a reunification plan.   The parents argue substantial evidence did not support the rulings.   We affirm the juvenile court orders.

FACTUAL AND PROCEDURAL BACKGROUND

Background and Detention

When the Los Angeles County Department of Children and Family Services (DCFS) first became involved in the instant case, the parents were licensed foster parents.   Five foster children lived in their home, in addition to their adult biological son D.A., and their two minor biological children, 15–year–old daughter T.A., and 12–year–old son K.A. In May 2010, an unrelated child, K.D., reported father had subjected her to inappropriate sexual comments and sexual abuse.   K.D. was a foster child in the home of a friend of the parents.   A DCFS investigation revealed other complaints about father.   One female foster child reported that when she visited the parents' home, father always stared at her breasts and those of the female foster children.   When she began wearing her jacket at the parents' house to avoid father's stares, father repeatedly told her to take her jacket off.   The parents' adult biological daughter, M.A., told DCFS father made inappropriate comments to her and subjected her to unwanted touching, beginning when she was 16 years old.   When M.A. told mother about father's behavior, mother did not believe her and said father would “never do anything like that.”   In 2008, T.L., a friend of M.A.'s, reported to DCFS that father made offensive sexual comments to her and asked her questions about her sexual preferences.

The parents denied the allegations.   They asserted K.D. had falsely accused father because they had a dispute with K.D.'s foster mother over money.   Mother told DCFS father was never alone with K.D. or any foster child, “especially the female foster children.”   Father also reported he had a rule not to ever be alone with any foster child so that he would not be subject to accusations like K.D.'s. The parents denied M.A.'s allegations.   They claimed M.A. moved out of their house because she did not want to follow the parents' rules.   At a Team Decision Meeting, father disclosed that he was accused of molesting a mildly mentally disabled person at his place of employment.   However, the matter was investigated and he was still employed by the same agency.

In June 2010, the juvenile court detained the children.

Jurisdiction/Disposition Report and Hearings

In a July 2010 jurisdiction and disposition report, and at the jurisdiction hearing, K.D. provided detailed information about father's abuse.   K.D. was 14 years old at the time of the jurisdiction hearing.   According to K.D., her foster family and the parents' family spent a lot of time together.   In 2009, K.D. told the parents that her biological mother had forced her to have sex in exchange for drug money, and that her uncle had sexually abused her.   After that conversation, father began to give K.D. money and got “touchy.”   This made K.D. uncomfortable.   It reminded her of what had happened with her mother.   When father gave K.D. money, he sometimes touched her, or told her she could tell him if she needed anything, and that she could talk to him.

On multiple occasions, father accosted K.D., fondled her breasts, rubbed her legs, or attempted to unbuckle her pants.   When the two families were on a cruise together, father told K.D. he wanted to have sexual intercourse with her.   On another occasion at the parents' house, father found K.D. alone.   Father complained to K.D. about mother's failure to engage in sexual activities with him, at which point father digitally penetrated K.D. and tried to force her to touch his penis.   Father stopped only when he heard someone in the next room.   Father told K.D. to follow him to the bathroom if she wanted to have intercourse with him.   On yet another occasion, father entered a room where K.D. was sitting with K.A. When K.A. left the room, father began to grope K.D. and tried to unbutton her pants.   He stopped when K.A. returned momentarily.   K.D. attempted to get K.A. to stay in the room, but he left.   Father fondled K.D.'s breasts and unbuttoned her pants.   K.D. got up and temporarily left the room.   When K.A. returned a few moments later, he whispered to K.D. “are you okay?”   K.D. nodded that she was.   K.D. did not know what, if anything, K.A. had seen.

K.D. testified that mother was never present during the incidents with father.   She did not know if mother witnessed any of the incidents.   However, she reported that when father “used to rub his feet on us, [mother] would tell him to leave us alone.”   K.D. later testified that father repeatedly rubbed his feet against hers.

T.L. gave DCFS information and testified at the disposition hearing.   T.L. was a friend of the parents' adult biological daughter, M.A. T.L. reported that in 2008, father often made comments to her about the size of her breasts and buttocks.   He asked her if she “liked getting done in the butt because his wife [did.]”   Father made comments about T.L.'s anatomy in the presence of mother, but mother said nothing.   T.L.'s mother told DCFS that father talked about the parents' sex life in front of “[whoever] was in the room, even some of the kids.”   According to T.L.'s mother, when father made “his little comments,” mother just laughed.¹

M.A. also provided information to DCFS. M.A. reported that when she was 16, father began making “weird eye contact” with her, and commented on her breasts and appearance.   Once, when she was wearing a skirt, M.A. walked by father while he lay on the ground.   He grabbed her leg and tried to look up her skirt.   Father asked M.A. if she wore thong underwear and told her she should.   He then bought her thong underwear and told her to try them on so he could see how they looked.   Around this time, M.A. often wrestled with her siblings.   When father participated in the wrestling, he fondled M.A.'s breasts and touched her “private area.”   M.A. told mother she thought father was “coming on to [her],” but mother said she was lying.   M.A. eventually ran away from home because of father's behavior and mother's denial that it was happening.

The parents were the legal guardians of J.B., who was 16 years old at the time of the disposition hearing.   J.B. testified that when she was living at the parents' house, father often hugged her and gave her back rubs, which made her uncomfortable.   J.B. also testified that father commented on her underwear in mother's presence, making statements such as, “I see you're wearing those g-strings, well, dental flosses again.”

The children told DCFS father had never touched them in an inappropriate way.   They recounted the family rule that girls were not allowed to be left alone with father to prevent allegations like K.D.'s. T.A. said mother was allowed to be alone with the boys at the house.   K.A. told DCFS the family had instituted the rule because a few years earlier another girl made allegations about father that were not true.   T.A. reported the whole family joked with J.B. about “wearing dental floss,” and when father made such comments he was also joking.   The children did not believe M.A.'s allegations were true.   They both wanted to return home to their parents.

Mother denied all of the allegations.   Mother said she never heard or observed father making inappropriate comments to M.A., and asserted M.A. left home because she did not want to follow the family's rules.   M.A. never told mother she left home because she felt uncomfortable with father.   Mother said T.L. spent very little time at their house, and recalled only one incident in which T.L. “flashed” her two sons.   Mother denied that father made inappropriate comments to T.L. in her presence.   Mother testified that whenever K.D. was at their house, mother was present.   She indicated the only inappropriate things that had ever happened with K.D. concerned K.D.'s own behavior.   According to mother, on the cruise, K.D. opened her cabin door to father and K.A. with her top down.   Mother further alleged K.D. had attempted to “go out” with mother's biological and foster sons.

At the disposition hearing, the court admitted evidence for a companion case involving one of the family's foster children.   Several witnesses testified they saw or heard mother beat the child with a belt or stick.   The two older foster children of the family testified that they on occasion had hit the younger foster child, and they saw the parents' biological children hit the foster child, in the presence of the parents.   The foster child, then eight years old, testified in chambers that mother hit him with a belt on several occasions.   Mother denied using corporal punishment to discipline the child.²

The juvenile court sustained allegations in the dependency petition under Welfare and Institutions Code section 300, subdivisions (b) and (d), based on the K.D., T.L., and M.A. allegations of father's sexual abuse and inappropriate sexual comments, and mother's failure to protect the children.³  The court concluded under section 361, subdivision (c) that there was or would be a substantial danger to the children if they were returned to either of the parents, and there were no reasonable means to protect them without removing them from the parents' custody.   The children were ordered suitably placed.   The juvenile court further ordered the parents to take DCFS-approved parenting education classes.   Both parents were to undergo individual counseling to address the case issues.   The court also ordered mother to attend a sexual abuse awareness program for nonoffenders.   Father was ordered to attend a separate sexual abuse program for offenders.   The court granted the parents monitored visitation.   Mother objected to the case plan.

Both parents timely appealed.

DISCUSSION

I. Substantial Evidence Supported the Juvenile Court's Jurisdictional Order

The parents contend the juvenile court did not have sufficient evidence to assert jurisdiction over the children.   Father asserts there was insufficient evidence that the children were at substantial risk of physical harm under section 300, subdivision (b) and there was insufficient evidence that K.A. was at risk of sexual abuse under section 300, subdivision (d).  Mother argues there was insufficient evidence that either child was at risk of abuse under section 300, subdivision (b) or (d).  Mother additionally contends the juvenile court should not have sustained allegations as to her because there was insufficient evidence she knew or should have known of father's conduct.

We begin with general principles relevant to our review.  “ ‘ “ ‘When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact.  [Citation.]  In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact.  [Citation.]’  “ [Citation.]   While substantial evidence may consist of inferences, such inferences must rest on the evidence;  inferences that are the result of speculation or conjecture cannot support a finding.  [Citation.]'  [Citation.]”  (In re Anthony G. (2011) 194 Cal.App.4th 1060, 1065.)

The dependency court asserts jurisdiction over the children, not the parents.   If sufficient evidence supported jurisdiction based on one parent's conduct, it was proper for the court to assert jurisdiction, irrespective of the other parent's conduct. (§ 302, subd. (a);  In re James C. (2002) 104 Cal.App.4th 470, 482.)   Similarly, if substantial evidence supports findings related to any of the asserted bases for jurisdiction, we will affirm the juvenile court's jurisdictional order.  (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 (Alexis E.).)

A. Section 300, subdivision (d) as to Father

The juvenile court may assert jurisdiction over a child under Welfare and Institutions Code section 300, subdivision (d), if it finds “[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 or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.” ⁴

1. Substantial Risk that Father Would Sexually Abuse T.A.

The record's evidence was more than sufficient for the juvenile court to find there was a substantial risk that father would sexually abuse T.A. There was evidence that father had a persistent, unbroken pattern of engaging in inappropriate sexual behavior with girls around T.A.'s age.   His behavior was not limited to unrelated children, or to offensive comments.   Father made inappropriate sexualized comments to M.A., his older biological daughter.   He also found opportunities to fondle her breasts and touch her genital area.   After M.A. left home, father's behavior escalated from inappropriate comments to T.L. and offensive touching of M.A., to repeatedly propositioning K.D., touching her intimate parts, and digitally penetrating her vagina.   Although T.A. denied father had engaged in inappropriate behaviors with her, the evidence indicated father's behavior with M.A. began when she was 16 years old.   T.A. was approaching that age.   Substantial evidence supported the juvenile court's findings under section 300, subdivision (d), as to T.A. (In re Maria R. (2010) 185 Cal.App.4th 48, 61–62, 64 (Maria R.).)

2. Substantial Risk that Father Would Sexually Abuse K.A.

The parents argue the evidence did not establish that K.A., as father's male biological child, was also at substantial risk of sexual abuse.   We disagree.

This court addressed a similar argument in In re Andy G. (2010) 183 Cal.App.4th 1405 (Andy G.).   In Andy G., the juvenile court found the father had sexually abused his 12– and 14–year–old stepdaughters, including once in the presence of father's toddler son.  (Id. at pp. 1407, 1409–1410.)   The juvenile court concluded the son was also at risk of sexual abuse.  (Id. at p. 1407.)   On appeal, the father argued evidence showing he sexually abused his stepdaughters was insufficient to show his son was at substantial risk of sexual abuse.   We reviewed prior cases that considered this issue, including In re Rubisela E. (2000) 85 Cal.App.4th 177, In re Karen R. (2001) 95 Cal.App.4th 84, and In re P.A. (2006) 144 Cal.App.4th 1339.   We agreed with the proposition advanced in P.A. that “aberrant sexual behavior by a parent places the victim's siblings who remain in the home at risk of aberrant sexual behavior,” regardless of the sex of the children involved.   (P.A., at p. 1347.)   We noted the father had shown a lack of concern for whether the son might observe the father's aberrant sexual behavior.   And we concluded the record supported the juvenile court's determination that the father's aberrant sexual behavior with his stepdaughters placed the son at risk of sexual abuse.  (Andy G., at p. 1415.)

Likewise, in this case father repeatedly demonstrated sexually aberrant behavior, sometimes in the presence or near presence of K.A. Father's molestation of M.A. occurred while his children, presumably including his male children, were together, wrestling.   Father made inappropriate sexualized comments to teenage girls in front of anyone present.   And father groped, fondled, and propositioned K.D. while K.A. was freely moving in and out of the room.   Although it is not clear if K.A. witnessed his father's behavior, he was aware enough that something was amiss that he whispered to ask K.D. if she was okay.   As in Andy G., father's actions demonstrated, at a minimum, his “total lack of concern for whether [K.A.] might observe [father's] aberrant sexual behavior.”  (Andy G., supra, 183 Cal.App.4th at p. 1414.)   On this record, the juvenile court reasonably found father's aberrant sexual behavior with girls, including his biological daughter, placed K.A. at risk of sexual abuse.   The finding that K.A. was a dependent child pursuant to section 300, subdivision (d), was proper.⁵

B. Section 300, subdivision (d) as to Mother

As noted above, the trial court properly asserted jurisdiction over the children based on father's conduct.   However, because the findings as to mother were relevant to the court's dispositional order, we consider mother's arguments on the jurisdictional findings relating to her.  (In re John S. (2001) 88 Cal.App.4th 1140, 1143.)   Mother contends there was no substantial evidence establishing she knew or should have known the children were at risk of sexual abuse.   We disagree.

Father had a pattern of sexual abuse of children that spanned several years.   There was evidence that M.A. told mother about father's conduct, but mother did not believe her.   There was evidence that father made inappropriate sexual comments to teenage girls in mother's presence, but mother said nothing, or just laughed.   The family had a rule that female children could not be in the house with father if mother was not home.   The trial court could properly infer the rule was an indication mother knew or suspected children could not safely be left alone with father.   And, despite the rule, mother failed to ensure that children in her house were kept safe from father.   The evidence was sufficient for the trial court to conclude mother knew or should have known the children were at risk of sexual abuse.  (See Maria R., supra, 185 Cal.App.4th at p. 60.)

Substantial evidence supported the juvenile court's assertion of jurisdiction under section 300, subdivision (d).  We therefore need not address the parents' arguments regarding section 300, subdivision (b).  (Andy G., supra, 183 Cal.App.4th at p. 1415, fn. 6;  Alexis E., supra, 171 Cal.App.4th at p. 451.)

II. Substantial Evidence Supported the Juvenile Court's Dispositional Order

A. Removal

Mother contends there was insufficient evidence to support the juvenile court's order removing the children from her custody.⁶  We find no error.

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 by 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 parent's ․ physical custody.”  “The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).)   The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate.   The focus of the statute is on averting harm to the child.  [Citations.]  In this regard, the court may consider the parent's past conduct as well as present circumstances.”  (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)

As noted above, there was evidence mother turned a blind eye to father's inappropriate conduct.   M.A. told mother about father's behavior, but mother did not believe her.   Mother claimed M.A. never told her father had molested her, and that M.A. moved out because she did not want to follow the family's rules.   Mother also denied father made inappropriate comments to other girls.   When faced with the T.L. and K.D. allegations, mother denied that anything could have happened, and further countered the allegations by reporting the girls' allegedly inappropriate sexualized behavior.   As noted above, mother claimed that on the cruise, K.D. opened the door to father and K.A. with her shirt down.   Mother also asserted K.D.'s allegations were fabricated due to a feud between the parents and K.D.'s foster mother.   Similarly, mother claimed T.L. “flashed” father and K.A., and implied T.L.'s complaints were the result of mother becoming less friendly with T.L.'s mother.   Mother even reported that M.A.'s claim that father had tried to look up her skirt could not be true because M.A. did not wear dresses, only “skin tight pants and low cut shirts.”   Mother's complete denial of the allegations regarding father, as well as her attempts to claim it was the girls who displayed sexualized conduct, suggested mother was not able to adequately protect the children from father's behavior.

On appeal, mother points out father moved out of the house immediately after the children were detained, and that she testified she would follow court orders, including preventing contact between the children and father if necessary.   However, mother's steadfast denial of the allegations could reasonably cause the court to question mother's testimony.   In addition, there was evidence that mother's testimony was untruthful in general.   Mother testified she never used corporal punishment with any child in her care, including her young foster son.   Yet her testimony was contradicted by the foster child's testimony, and that of several other witnesses who reported they saw or heard mother hitting the child.   Mother was also present when other, older children hit the foster child.   Although mother indicated she learned about proper discipline from foster parent training, she apparently disregarded what she had learned.

Further, mother incorrectly believed the family “rule” was enough to protect children at the house.   The rule had not prevented father's conduct.   There was also evidence that mother's adult biological son sexually assaulted two teenage girls, including mother's ward, in the parents' home.   The court had reason to question mother's truthfulness, and could disbelieve her assertion that she was now capable of adequately protecting the children.   The juvenile court reasonably determined removal from mother's custody was necessary to protect the children's physical health or emotional well-being.  (Maria R., supra, 185 Cal.App.4th at p. 71.)

B. Case Plan

Mother further contends the juvenile court erred in ordering her to participate in a parenting program, individual counseling, and a sex abuse awareness program for nonoffenders.   We conclude the trial court acted well within its discretion in formulating this case plan.  “At the dispositional hearing, the juvenile court must order child welfare services for the minor and the minor's parents to facilitate reunification of the family.  [Citations.]  The court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion.  [Citations.]  We cannot reverse the court's determination in this regard absent a clear abuse of discretion.  [Citation.]  [¶] The reunification plan ‘ “must be appropriate for each family and be based on the unique facts relating to that family.”  ‘ [Citation.]  Section 362, subdivision (c) states in pertinent part:  ‘The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court's finding that the minor is a person described by Section 300.’   [Citation.]  The department must offer services designed to remedy the problems leading to the loss of custody.”  (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006–1007.)

As explained above, the juvenile court sustained the dependency petition, concluding father's conduct placed the children at risk of sexual abuse, and that mother knew or should have known of the risk to the children.   It was therefore entirely appropriate for the trial court to order mother to participate in a sex abuse awareness program for nonoffenders.   In addition, although mother asserts she had previously taken a parenting class in connection with the foster parent certification process, the evidence indicated she had since engaged in behaviors antithetical to proper parenting.   She used severe corporal punishment to discipline her foster son and ignored evidence that father was subjecting children in the house to inappropriate sexual behaviors.   It was reasonable for the court to order further parenting training.   Individual counseling was also an appropriate tool to help mother address the factors that led her to ignore or deny father's behavior in the past.   Substantial evidence supported the trial court's dispositional orders.   We find no abuse of discretion.

DISPOSITION

The juvenile court orders are affirmed.

BIGELOW, P. J.

We concur:

RUBIN, J.

GRIMES, J.

FOOTNOTES

FN1. In 2008, DCFS received a referral based on T.L.'s complaints about father, but it closed the referral as unfounded..  FN1. In 2008, DCFS received a referral based on T.L.'s complaints about father, but it closed the referral as unfounded.

FN2. There was also disturbing evidence of the conduct of the parents' adult biological son, D.A., who was still living in the home, including as it related to father.   T.L. testified that D.A. raped her at the parents' house.   Following the rape, father asked her for details of her sexual encounter with D.A., and asked if she liked anal sex.   J.B., the parents' legal ward, testified she had engaged in sexual intercourse with D.A. at the parents' home, and that the first encounters were involuntary.   J.B. was pregnant at the time of the disposition hearing.   She said D.A. was the father of her child.   D.A. denied having sex with either T.L. or J.B. However, the court found D.A. to be “one of the most likely unbelievable witnesses I've ever seen.”.  FN2. There was also disturbing evidence of the conduct of the parents' adult biological son, D.A., who was still living in the home, including as it related to father.   T.L. testified that D.A. raped her at the parents' house.   Following the rape, father asked her for details of her sexual encounter with D.A., and asked if she liked anal sex.   J.B., the parents' legal ward, testified she had engaged in sexual intercourse with D.A. at the parents' home, and that the first encounters were involuntary.   J.B. was pregnant at the time of the disposition hearing.   She said D.A. was the father of her child.   D.A. denied having sex with either T.L. or J.B. However, the court found D.A. to be “one of the most likely unbelievable witnesses I've ever seen.”

FN3. All further statutory references are to the Welfare and Institutions Code unless otherwise noted..  FN3. All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

FN4. Penal Code section 11165.1 provides in relevant part:  “As used in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following:  [¶] ․ [¶] (b) Conduct described as ‘sexual assault’ includes, but is not limited to, all of the following:  [¶] ․ [¶] (3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.  [¶] (4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities;  interactions with, or demonstrations of affection for, the child;  or acts performed for a valid medical purpose.”.  FN4. Penal Code section 11165.1 provides in relevant part:  “As used in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following:  [¶] ․ [¶] (b) Conduct described as ‘sexual assault’ includes, but is not limited to, all of the following:  [¶] ․ [¶] (3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.  [¶] (4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities;  interactions with, or demonstrations of affection for, the child;  or acts performed for a valid medical purpose.”

FN5. In Maria R., supra, 185 Cal.App.4th at pages 63, 68, the court concluded a parent's sexual abuse of a daughter alone, or combined with factors unrelated to sexual abuse, is not sufficient to establish the parent's son is at risk of sexual abuse under section 300, subdivision (d).  However, we find that in this case, the evidence, and all reasonable inferences that could be drawn from such evidence, permitted the juvenile court to find both T.A. and K.A. were at risk of sexual abuse..  FN5. In Maria R., supra, 185 Cal.App.4th at pages 63, 68, the court concluded a parent's sexual abuse of a daughter alone, or combined with factors unrelated to sexual abuse, is not sufficient to establish the parent's son is at risk of sexual abuse under section 300, subdivision (d).  However, we find that in this case, the evidence, and all reasonable inferences that could be drawn from such evidence, permitted the juvenile court to find both T.A. and K.A. were at risk of sexual abuse.

FN6. Although father challenges the dispositional order, his sole argument is that substantial evidence did not support jurisdiction over K.A. under section 300, subdivision (d), or a resulting removal.   We have addressed this argument above..  FN6. Although father challenges the dispositional order, his sole argument is that substantial evidence did not support jurisdiction over K.A. under section 300, subdivision (d), or a resulting removal.   We have addressed this argument above.