In re Priscilla S.

Filed 11/28/05 In re Priscilla S. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re PRISCILLA S., et al., Persons Coming Under the Juvenile Court Law.	B181146 (Los Angeles County Super. Ct. No. CK57109)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JUAN S., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn Kading Martinez, Commissioner. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Arezoo Pichvai, Deputy County Counsel, for Plaintiff and Respondent.

Juan S. appeals from a juvenile court order declaring four of his children, Priscilla S., Vanessa S., Felipe S., and Fernando S., dependents of the court under Welfare and Institutions Code section 300, subdivisions (a), (b), (d), (i) and (j).[1] Appellant contends that there is no substantial evidence to support the jurisdictional findings of sexual abuse of one daughter. He does not contest the allegations that he physically abused all the minors, the basis for the jurisdictional finding under subdivision (a) of section 300. We conclude that there is substantial evidence to support the juvenile court’s jurisdictional findings, and accordingly affirm.

FACTS

In November 2004, the Department of Children and Family Services (DCFS) filed a section 300 petition regarding minors Priscilla S., born in 1988; Vanessa S., born in 1989; Felipe S., born in 1995; and Fernando S., born in 1999. The petition alleged, under subdivision (a) of section 300, that appellant physically abused his children by striking them with a belt and his hand, that he physically abused the minors’ sibling, Juan S., and half-sibling Alex, by striking them with a belt, and that appellant “has a history of violent and aggressive behavior in that the children’s father has been violent toward the children’s mother and has threatened to kill the mother and the children.” The petition also alleged, under subdivision (b) of section 300, that for about three years, appellant sexually abused his daughter Priscilla, and that he threatened to harm her if she disclosed the abuse. Under subdivisions (d), (i), and (j), the petition alleged that the sexual abuse of Priscilla places her, Vanessa, Felipe, and Fernando at risk of physical and emotional harm.

Priscilla, Vanessa, Felipe, and Fernando were detained in the home of their mother, who was in the process of divorcing appellant.

According to the DCFS jurisdiction/disposition report, sibling Juan Jr. knew that all of appellant’s children were physically abused by father, and Juan Jr. said that he himself had been struck with a belt by appellant. Minors Priscilla and Vanessa reportedly stated that appellant would hit them and their siblings with an open hand and a belt, mostly when their mother was at work, and that they had witnessed domestic violence incidents between their parents. Minor Felipe “indicated that he thinks he remembers that his father had hit him a few years ago, but could not remember recently his father ever striking him.” Fernando indicated that his father spanked him many times. Both he and Felipe were unaware of appellant’s physical abuse of their siblings. Paternal half-sister Milagros S. also indicated that appellant had physically abused her, when they lived together in El Salvador, and that she had witnessed her brother Juan Jr. being physically abused by their father. Mother reportedly stated that although she had never witnessed father striking the children, all her children had told her of incidents of physical abuse.

The DCFS report also discussed appellant’s domestic violence against mother, who reported multiple incidents of domestic violence, including a 1991 incident when appellant struck mother with a broom. Mother said she never left appellant because she was afraid for her and her children’s safety and because she did not know if she could financially care for all of her children. Juan Jr. reportedly stated that “he had witnessed violent arguments between his mother and father many times in the past. He indicated that his father would get extremely angry during these arguments and that both he and his siblings were very afraid of what his father might do. He also indicated that he had heard his father making verbal threats against his mother. He indicated that he heard his father threaten to kill his mother.”

Appellant reportedly denied ever striking any of his children or committing domestic violence against their mother. He speculated that his children were making up accusations against him because of his new relationship with a woman. Appellant told DCFS that it was possible that his estranged wife was trying to gain custody of all the children so that she could collect child support from him and improve her financial situation.

Regarding the sexual abuse allegation against appellant, DCFS reported that Priscilla said such abuse occurred in her bedroom at night while her mother was working. Although Priscilla’s sister Vanessa shared a bedroom with her at that time, Vanessa reportedly slept “very soundly and never woke up while the sexual abuse was occurring. Priscilla also indicated that she never cried, yelled or screamed while the sexual abuse was happening due to the fact that father had threatened her with bodily harm if she ever made any noise or disclosed the extent of the sexual abuse to anybody. She did indicate that she had told her mother that her father had ‘touched her’, but did not go into details.” While Vanessa did not learn of the sexual abuse of her sister until the family became involved with DCFS, “Vanessa did indicate that her mother had questioned her about whether or not she was being sexually abused by their father and Vanessa had told her that she had not.” DCFS reported that mother indicated that her stepdaughter had said that appellant had sexually abused her when they both lived in El Salvador. The stepdaughter, Milagros, said that her father had raped her and committed sexual abuse over an extended time period. Milagros “indicated that she had told her stepmother that the sexual abuse had occurred and the mother approached father and asked him about the allegations.”

The DCFS report stated that appellant “emphatically” denied sexual abuse. He told DCFS that perhaps some of his children are jealous that he has a new relationship, and that he believed their mother was coaching them to lie so that she could obtain additional child custody and money from appellant.

DCFS noted that “[a]ll of the children have been consistent with their stories in regards to this alleged sexual and physical abuse.”

At the adjudication hearing that commenced on February 8, 2005, and continued through February 10, appellant’s three daughters, Milagros, Priscilla, and Vanessa, and his son Felipe testified, as well as his separated wife. Half-sibling Milagros testified that appellant raped her when she was 14 years old. On cross-examination, Milagros answered in the affirmative to the question whether appellant asked her to lie in court.

The subject minors’ mother testified that when she and appellant were living together, he hit her multiple times from 1991 through when they separated in 2004. Appellant also attacked mother with a broom twice, including when she was pregnant with their youngest son, Fernando. Mother further testified that appellant threatened to take away their children and to kill her, and that he threatened mother’s aunt and mother.

Minor Priscilla testified that she remembered telling the DCFS social worker that her father hit her and her younger siblings with his hand and a belt, that there was domestic violence between her parents, and that appellant sexually abused her, digitally penetrating her and having sexual intercourse. Priscilla explained that digital penetration means “with the fingers,” and that sexual intercourse means that “he used his private part.” Priscilla testified that she never cried or screamed when the abuse was occurring because her father had threatened to hurt her if she made any noise and because she was scared of her father.

Priscilla’s younger sister Vanessa testified that appellant hit her with his hand, and that she saw appellant about to strike her mother with a broomstick but that Vanessa and her sister Priscilla “snatched the broomstick from his hand.” Vanessa testified that she and Priscilla slept in bunk beds in one room, and that Vanessa is not a light sleeper.

Felipe testified that he was “a little” afraid of his father because of what he heard about his sisters. When his parents locked themselves in their room, Felipe would hear screaming and sounds “like there was hitting,” “like when you clap.” Once Felipe heard his father threaten to hurt his mother.

Appellant denied ever hitting his children with his hand or a belt, he denied ever hitting or threatening his estranged wife with a broom, and he denied ever sexually abusing his daughters Priscilla and Milagros. Appellant accused his estranged wife, and his daughters Milagros, Priscilla, and Vanessa of lying. Appellant testified that Milagros called him to tell him that her half-siblings’ mother threatened to kill Milagros and her son if she did not testify on the mother’s behalf. Appellant stated that his other children were lying to the court because their mother advised them as to what to say in order to make appellant “a ruined man.” Appellant accused his estranged wife of slapping him twice on the face.

On cross-examination, appellant testified that he did not see Milagros kiss appellant’s wife goodbye following her testimony. Mother subsequently testified that after the juvenile court excused Milagros, she walked over to her half-siblings and kissed them on the cheek, and did the same to mother. Mother did not ask Milagros to kiss her.

The juvenile court sustained, by a preponderance of the evidence, all the counts alleged against appellant. The court declared minor Priscilla a dependent child under subdivisions (a), (b), (d), (i) and (j) of section 300, and her younger siblings Vanessa, Felipe, and Fernando dependent children under subdivisions (a), (b), (d) and (j) of section 300.

DISCUSSION

Appellant argues that there is no substantial evidence to support the juvenile court’s jurisdictional findings. In particular, he challenges the jurisdictional findings under counts b-4, d-1, i-1, and j-4 of the subject petition. Those counts each allege that for approximately three years appellant sexually abused Priscilla, threatened harm to Priscilla if she disclosed the abuse, and that this abuse endangered Priscilla and placed her and her younger siblings at risk of physical and emotional harm. Section 300 provides that a child “who comes within any of the following descriptions [set forth in the statute’s subdivisions] is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court . . . .”

In reviewing the juvenile court’s jurisdictional findings, we are limited to deciding if the findings are supported by substantial evidence. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) “The term ‘substantial evidence’ means evidence ‘which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . . It must be reasonable in nature, credible, and of solid value . . . .’ [Citations.]” (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) If there is conflicting evidence, “[a]ll conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.]” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)

Physical Abuse Allegations

Significantly, appellant does not contest the physical abuse allegations made under subdivision (a) of section 300. That subdivision provides dependency jurisdiction over a child who “has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent . . . . For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on . . . a history of repeated inflictions of injuries on the child or the child’s siblings . . . .” Given the substantial evidence of repeated physical abuse of his children, section 300 juvenile court jurisdiction over the four minors is warranted. As long as the evidence supports jurisdiction on one of multiple grounds, we may uphold the order declaring the minors dependents of the juvenile court. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)

Although our conclusion makes it unnecessary to examine the remaining jurisdictional findings, we consider appellant’s arguments on appeal concerning the sexual abuse, cruelty, and sibling abuse allegations.

Sexual Abuse Allegations

Appellant argues that there is no substantial evidence that he sexually abused his daughter Priscilla, and he refutes the finding that the other subject minors were at substantial risk of sexual abuse. Subdivision (d) of section 300 provides dependency court jurisdiction over a child who 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 (a) of Penal Code section 11165.1 defines “sexual assault” as including violations of Penal Code section 647.6, which makes it a crime for a person to “annoy[ ] or molest[ ] any child under the age of 18 . . . .”

The record shows that Priscilla was consistent in her allegations of sexual abuse to DCFS and in her court testimony. Furthermore, as pointed out by DCFS, the risk of harm existed because appellant continually and adamantly denied any abuse. “[A] father who has committed two incidents of forcible incestuous rape of his minor daughter reasonably can be said to be so sexually aberrant that both male and female siblings of the victim are at substantial risk of sexual abuse within the meaning of section 300, subdivision (d), if left in the home.” (In re Karen R. (2001) 95 Cal.App.4th 84, 90-91.)

Here, there is substantial evidence of multiple acts of sexual abuse committed against Priscilla over a three-year period. The fact that Priscilla’s younger sister Vanessa did not hear anything when sleeping in the same room as Priscilla does not negate the evidence of abuse, as Vanessa gave uncontroverted testimony that she was not a light sleeper which was corroborated by Priscilla’s reported statement to DCFS that her sister slept soundly. Further, there is substantial evidence that the subject minors’ older half-sister Milagros was a victim of appellant’s sexual abuse. Appellant’s response to the abuse of Milagros is that it “allegedly occurred on only [one] occasion, in El Salvador, years before when Milagros was fourteen years old.” Appellant accused Milagros of lying in court out of fear of her stepmother. This accusation is not credible in light of the fact that Milagros expressed affection for appellant’s estranged wife following Milagros’ testimony. Clearly, on the record here, there is a substantial risk of harm for all the subject minors.

Cruelty Allegations

In attacking the jurisdictional finding under subdivision (i) of section 300, appellant again argues that there is insufficient evidence of sexual abuse or that the subject minors are at substantial risk of future sexual abuse. Subdivision (i) of section 300 provides dependency court jurisdiction over a child who “has been subjected to an act or acts of cruelty by the parent . . . .”

DCFS relies on the American Heritage Dictionary definition of the word “cruel” as meaning “Causing suffering: painful.” DCFS correctly points out that the juvenile court sustained the subdivision (i) cruelty allegation as to Priscilla only. We agree with DCFS that it is “difficult to imagine how sexually abusing a child would not cause her pain and suffering.”

Sibling Abuse and Substantial Risk Allegations

Appellant argues that there is no substantial evidence to support the findings that the four subject minors come under subdivision (b) of section 300 due to the conduct alleged in count b-4, and he points out that count j-4 is identical to count b-4. Appellant argues that since the validity of count j-4 depends on a sustained finding of substantial risk of serious physical harm as alleged in count b-4, the allegations in count j-4 must fail “because the evidence was not sufficient to support dependency jurisdiction under subdivision (b).”

Subdivision (j) of section 300 provides 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. The court shall 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.”

Section 300, subdivision (b) gives dependency court jurisdiction if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm . . . as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . .”

Again, counts b-4 and j-4 of the petition before us both allege that for about three years, appellant sexually abused Priscilla, threatened to harm her if she disclosed the abuse, and that this abuse placed Priscilla and her younger siblings at risk of physical and emotional harm. Since we have already concluded that substantial evidence supports the sexual abuse allegations concerning Priscilla, and since there is substantial evidence that appellant previously sexually abused his oldest daughter Milagros, dependency jurisdiction under subdivision (j) of section 300 is warranted. Given our conclusion, there is no need to analyze In re Janet T. (2001) 93 Cal.App.4th 377, a case relied on by appellant in support of his argument that the jurisdictional findings under subdivision (j) of section 300 must fail because the allegations under section 300, subdivision (b) are insufficient to support jurisdiction.

Appellant’s Claimed Substantial Prejudice from Jurisdictional Sexual Abuse Findings

Finally, appellant argues that we have discretion to decide the jurisdictional issue challenged by appellant because he “has suffered, and will continue to suffer, substantial prejudice as a result of improper jurisdictional findings regarding sexual abuse.” Appellant contends that the reunification services he received were designed to address the sexual abuse he allegedly committed, and that this “creates a potential for rulings adverse to Father throughout the dependency proceedings involving Vanessa, Felipe and Fernando, as well as Priscilla.” Appellant contends that his fundamental interest in parenting his children, and his and their fundamental interest in maintaining their familial relationship, was harmed by the juvenile court’s improper jurisdictional findings. Because of the jurisdictional findings based on the sexual abuse allegations, appellant contends that he has been improperly labeled as a sexual predator and thus the case plan improperly focuses on remedies for a sexual offender “as opposed to properly focusing his case plan on services addressing his physical abuse and domestic violence conduct.”

In light of the substantial evidence in support of the sexual abuse findings, we reject appellant’s arguments as lacking merit.

DISPOSITION

The order declaring minors dependents of the juvenile court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

HASTINGS, Acting P.J.

We concur:

CURRY, J. WILLHITE, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.