California Court of Appeal Dec 6, 2024 No. E082345Unpublished
Filed 12/6/24 In re E.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.H., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E082345
Plaintiff and Respondent, (Super.Ct.No. DPRI2300144)
v. OPINION
D.H.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mona M. Nemat, Judge.
Affirmed.
Arthur J. LaCilento for Defendant and Appellant.
Minh C. Tran, County Counsel, and Prabhath Shettigar, Deputy County Counsel,
for Plaintiff and Respondent.
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I. INTRODUCTION
Appellant D.H. (Father) is the father of E.H. Father appeals from the October 4,
2023 jurisdictional findings and dispositional orders, adjudicating E.H. a dependent of the
juvenile court and removing E.H. from Father’s care. (Welf. & Inst. Code, §§ 300, 361,
395.)1 Father claims: (1) insufficient evidence supports the court’s jurisdictional
findings that Father had sexually abused E.H., and there was a substantial risk Father
would continue to sexually abuse E.H. (§ 300, subds. (b)(1), (d)), (2) the court abused its
discretion in removing E.H. from Father’s care, and (3) the court denied Father due
process in excluding evidence at the jurisdictional and disposition hearing. We find no
merit to these claims and affirm the challenged orders.
II. FACTS AND PROCEDURE
A. Background
E.H. was born in May 2010. From January 2011 to February 2023, Father and
E.H.’s mother, C.C. (Mother),2 engaged in extensive family court litigation over custody
of E.H. and allegations that Father sexually abused E.H. Between March 2013 and June
2019, respondent Department of Public Social Services (DPSS) received several referrals
alleging Father sexually abused E.H., and found the referrals either unfounded or
inconclusive.
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 Mother is not a party to this appeal.
2
The family court also investigated the sexual abuse allegations against Father and
did not credit them. From and after January 2011, the parents generally shared joint legal
and physical custody of E.H. Most recently, a family court judgment, signed on February
16, 2023, awarded the parents joint legal custody of E.H. and established a timeshare
schedule. Under this schedule, E.H. was with Father four weekends each month and
three weekdays each week, from after school until 7:00 p.m.
On April 25, 2023, DPSS received a referral alleging general neglect and sexual
abuse of E.H. by Father. “It was reported that multiple people had shared . . . what they
believed was inappropriate physical contact between the father [and child]. [Father] had
been observed plac[ing] his hands on [the child’s] body, near her breasts, waist and groin
area on top of her clothing. Another individual observed an excessive level of affection
between [the two], stating they are ‘clingy’ and look like they are on a date.” On April
26, a social worker and law enforcement officers went to Father’s home to speak with
Father and E.H. about the referral. Father would not permit the social worker and
officers to enter the home but allowed the social worker to speak to E.H. at the doorway.
E.H. said she felt safe at home, she was not afraid of anyone, and she denied anyone had
touched her “private parts.”
Later on April 26, 2023, the social worker received a phone call from “a collateral
party” (not Mother) who was “familiar with” the family and reported seeing Father
inappropriately touching E.H. “for a few months now.” This party said E.H. was
“ ‘glued’ ” to Father “during [church] services” and did not engage with other children or
adults. E.H. would sit “right next to” Father, lay her head on his chest, put one hand on
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the upper part of his back, and “wrap the other around his chest,” while Father would
“plac[e] his hands on [E.H.’s] waist or near her breasts.”
On April 27, 2023, the social worker learned that police had interviewed E.H. at
her school on April 26 and planned to close the report as unfounded because E.H. did not
disclose any sexual abuse by Father. E.H. told the police her paternal grandfather would
know if anything were happening between her and Father. Later on April 27, the social
worker interviewed E.H. at her school. When asked whether she knew which parts of her
body were “private,” E.H. answered, “ ‘My dad hasn’t touched me.’ ” When asked if
anyone had ever asked her to keep a secret, E.H. said Father had asked her not to tell
Mother that E.H. and Father were sleeping in the same bed. E.H. clarified that she was
nine years old when she last slept in Father’s bed, and nothing inappropriate had
happened.
Soon after the social worker left E.H.’s school, Father called DPSS, saying he was
upset that both DPSS and the police had interviewed E.H. The social worker then called
Father and explained that allegations had been made that Father had been inappropriately
touching E.H. When asked whether he had touched E.H. near her breast, waist, or groin
area, Father said, “ ‘No, that is gross.’ ” Father told the social worker that speaking with
E.H. about the allegations was “on the verge of abuse” because E.H. had been vomiting
and upset since the social worker spoke with her. The social worker then spoke with
Mother, who said she had “concerns” about E.H. in Father’s care and had, “in the past,”
reported what E.H. told Mother about Father inappropriately touching her. Mother said
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E.H. was nine years old the last time E.H. disclosed that Father was inappropriate with
her.
The next day, April 28, 2023, Mother disclosed that, on the night of April 27, E.H.
told Mother that E.H. was upset because she had been questioned about Father “again.”
When Mother told E.H. that “people were concerned for her due to reports of
inappropriate touching,” E.H. said, “How would they know that? Were they in our
house?” When asked what she meant, E.H. said, “ ‘Don’t worry about it, mom. It hasn’t
happened in two months. He hasn’t done anything in two months.’ ” E.H. then “became
very upset, shut down, and went into her room.” Mother was worried because E.H would
return to Father’s care on Monday, May 1.
E.H. participated in a forensic interview on April 28, 2023. During the interview,
E.H. said she would sit on Father’s knee while watching television, and Father would pull
her back toward him with his arms around her stomach, but clarified that Father did not
want her to feel uncomfortable and would place his hands on her shoulders. E.H. also
said she would “ ‘cuddle’ ” with Father while watching television, meaning they would
lie on the couch facing each other, and the one with his or her back to the television
would turn his or her head toward the television. E.H. also said that, when she was nine
years old, she would sleep in Father’s bed, but it was “ ‘normal.’ ” At the time, Father
asked E.H. not to tell Mother they were sleeping in the same bed. When asked whether
Father ever touched her inappropriately, E.H. said, “ ‘I don’t think so’ ”; and when asked
what she meant, E.H. said, “ ‘It means if it did, I don’t remember.’ ”
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On May 1, 2023, DPSS notified the parents that DPSS intended to file a section
300 petition for E.H. and that a detention hearing would be held on May 4, 2023. Father
declined referrals for parenting, counseling, and mental health services. On May 1, E.H.
was detained from Father, but not Mother, pursuant to a protective custody warrant. On
May 3, DPSS filed a section 300 petition, alleging E.H. came within section 300,
subdivisions (b)(1) [failure to protect] and (d) [sexual abuse].
At the detention hearing on May 4, 2023, the trial court detained E.H. from Father
and left E.H. in Mother’s temporary custody. Counsel for E.H. was appointed E.H.’s
guardian ad litem. The court found DPSS made a prima facie showing that E.H. came
within section 300, subdivisions (b)(1) and (d), and detention from Father was necessary.
The court authorized supervised visits for Father in a therapeutic setting and an
immediate therapy referral for E.H. The court also issued a “no discussion” order,
directing anyone who was around E.H., including the parents, not to discuss the case with
E.H.
B. The Prior Allegations of Father’s Sexual Abuse of E.H. (2013 to 2019)
DPSS’s May 3, 2023 detention report and May 26 jurisdiction and disposition
report include detailed narratives of sexual abuse allegations against Father, made
between March 2013 and June 2019, which DPSS determined were unfounded or
inconclusive. In the following subsections, we summarize the 2013 to 2019 sexual abuse
allegations against Father, in order to provide context to the current allegations and
jurisdictional findings against Father.
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1. March 25, 2013 / E.H. Discloses Holding Father’s “Peepee”
DPSS received its first referral alleging Father sexually abused E.H. on
March 25, 2013. DPSS was concerned that Father was not covering himself when E.H.,
then age two, would walk into the bathroom when Father was using it. That day, E.H.
said the word “peepee,” and when asked whether she had seen Father’s “ ‘peepee,’ ” E.H.
said, “ ‘I touch boys’ “peepees.” ’ ” E.H. also said she “holds” Father’s “ ‘peepee’ in her
fingers.” Mother “ ‘went off’ ” on Father about it being in appropriate for E.H. to see
Father’s penis. Father said E.H. had “walked in on him again” but he believed it was
“natural” for E.H. to see Father naked. It was also reported that E.H. slept in Father’s bed
when E.H. spent the night with Father.
Around April 2013, Father’s visits with E.H. were suspended for six months while
Father was being investigated for sexually abusing E.H. Father’s visits resumed on
October 4, 2013. In November 2013, Mother reported E.H. would cry, “ ‘I need you. I
need you. I need you,’ ” every time Father returned E.H. to Mother, and E.H. did not
want to return to Father. But E.H. did the same thing when taken to her maternal
grandmother. It was believed E.H.’s behavior was due to E.H. not having seen Father for
six months.
2. August 14, 2014 / Showering Naked with Father
On August 14, 2014, Mother reported that E.H., then age four, told Mother that,
since December 2013, E.H. had showered with Father two to three times while they were
both naked. Mother reported telling Father she did not feel comfortable with Father
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showering naked with E.H., but Father said it was healthy for E.H. to be exposed to his
nudity.
3. November 5, 2014 / Redness Around E.H.’s Vaginal Area
On November 5, 2014, E.H. was brought to an emergency room due to redness
around her vaginal area. Mother tried diaper cream for the redness, but it did not
improve; and Mother reported the redness was worse when E.H. returned from being
with Father. Father refused to be interviewed. In a forensic interview, E.H. did not
disclose any sexual abuse by Father. From November 6, 2014 through December 1,
2014, DPSS received five “secondary” referrals with the same or similar allegations as
the “primary” November 5 referral.
4. December 1, 2015 / Reports of Showering Naked with Father
On December 1, 2015, Mother reported that E.H. said E.H. and Father showered
together, that E.H. had seen Father’s private parts, and that Father made E.H. “wash him”
when they showered together. E.H. also said Father took pictures of E.H. and made E.H.
take pictures of him, but it was unclear whether E.H. or Father were naked when the
alleged pictures were taken. E.H. said she told Father she did not want to shower with
him. In December 2015, the parents were involved in a “custody battle” for E.H., and
Mother had a domestic violence restraining order (DVRO) against Father.
5. March 4, 2016 / Further Reports of Showering Naked with Father
On March 4, 2016, it was reported that E.H. was having “memory flashbacks of
sexual abuse” by Father. E.H. said Father would “make her take showers with him and
make her wash his privates.” E.H. would tell Father to stop but he would not stop and
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would “mak[e] her do it anyway.” E.H. also said that Father would make E.H. “touch his
privates,” and E.H. saw “ ‘stuff come out of his belly button.’ ” E.H. was able to describe
the male anatomy. E.H. also said Father would take pictures of E.H. in the shower.
Father had the pictures of E.H. on his computer, which he kept locked in his car. Father’s
home was searched, and a different computer was confiscated. E.H. was described as
“absolutely terrified” of going with Father on weekends and “begging” for someone to
help her.
E.H. said Father had threatened her that if she told anyone “again” he would be “in
big trouble” and would go to jail. During the investigation of the March 4, 2016 referral,
E.H. said she told Mother she was afraid Father might “do all those bad things to her
again,” but she was “really little” and she did not recall what those bad things were.
DPSS concluded the referral was “inconclusive.” In May to September 2016, the parents
were still sharing physical custody of E.H., and E.H. was visiting Father on weekends.
6. June 14, 2019 / Father Pulled E.H.’s Pants and Underwear Down
On June 14, 2019, E.H. disclosed that, during her last visit with Father, she awoke
to Father pulling her pants and underwear down. Father explained to E.H. that he wanted
to check for a bruise on her bottom that he had seen. E.H. said this was not possible as
she was not wearing see-through clothing that would expose such an injury. E.H. also
said Father told E.H. not to tell Mother that Father and E.H. had been sleeping in the
same bed. E.H. wrote in her journal about some of the incidents that occurred with
Father. One journal entry read, “ ‘You lied to me. She knows the truth. I better make
her forget.’ ” Another read, “ ‘My dad told me not to tell my mother that we sleep
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together. I remember taking showers with dad once a weekend. I can’t remember if he
was wearing a bathing suit or not.’ ”
During the investigation of the June 14, 2019 referral, E.H. explained that she was
sleeping on one side of the bed when, without warning, Father pulled her pants down and
she felt afraid because she did not know what was going on. Mother reported that Father
had been told he was not to sleep in the same bed with E.H. In a July 2, 2019 forensic
interview, E.H. described how Father pulled her pants down but denied Father touched
her inappropriately. E.H. also said that, three years earlier, when E.H. and Father were in
the shower together, Father touched E.H.’s “private parts” and had E.H. touch his private
parts, but E.H. did not recall “any details” about the incident. E.H. said she tried to forget
about the incident because she felt responsible for it and reported “feeling scared and
having nightmares.” E.H. said Mother remembered what E.H. said about the incident
when it occurred in 2016.
Father claimed Mother had been “coaching” E.H. to make false sexual abuse
allegations against Father “for years.” Regarding pulling down E.H.’s pants, Father
explained he saw bruising above and below E.H.’s “butt crack,” asked E.H how she got
the bruises, and E.H. said she fell down at school. Father denied sleeping in the same bed
with E.H.; he said he had not slept in the same bed with E.H. since he had been told not
to, years earlier. DPSS closed the June 14, 2019 referral as unfounded for general neglect
and inconclusive for sexual abuse.
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C. Additional Evidence
On May 11, 2023, E.H. participated in a second forensic interview, following her
April 28, 2023 forensic interview, and after E.H. told a friend at school that Father was
inappropriately touching E.H. In the May 11 interview, E.H. said Father had “bothered
her in the past.” E.H. recounted that, when she was three years old, Father would “take
her in the shower with him, naked, and would make her wash him and ‘suck on’ ” his
penis. This occurred at the home of E.H.’s paternal grandparents, and Father “locked the
door.” E.H. said the “ ‘same thing’ ” happened, “ ‘probably more than one time,’ ” when
E.H. was six years old. E.H. said she could remember the showering incidents because
Mother reminded her that she told Mother about them when she was three and six years
old.
Another time, when E.H. was nine years old, E.H. and Father were sleeping in the
same bed, and Father began pulling E.H.’s pants and underwear down but pulled them up
when E.H. awoke. E.H. then disclosed that Father had touched her “ ‘a couple of
months’ ” before the May 11, 2023 interview “between her legs, on her hips, and on her
‘boobs.’ ” Father touched E.H.’s hips and thighs at Father’s home, while E.H. and Father
were sitting on the couch, fully clothed. A few days later, Father took E.H.’s shirt and
bra off, rubbed ointment on her chest, and rubbed it “ ‘really slowly’ ” on her “ ‘boobs.’ ”
When asked why she did not make these disclosures during her April 28, 2023
forensic interview, E.H. explained she was visiting Father at the time, and she was afraid
Father would “do ‘something,’ ” but she did not know what Father would do. E.H. said
she would “feel scared” if she saw Father again, she did not want to see Father or talk to
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him on the phone, and she wanted to stay with Mother. E.H. denied that Mother or
anyone told her what to say. On May 21, 2023, E.H. was taken to a hospital. The next
day, E.H. told a social worker she had a “ ‘rush of memories’ ” of what Father had done
to her, which became unbearable, so she cut herself and had to go to the hospital.
On June 7, 2023, Father agreed to be interviewed and denied sexually abusing
E.H. or touching E.H. inappropriately, at any time. Father said he pulled E.H.’s pants
down “slightly” because he saw bruising above her pant line, and he wanted to see how
severe the bruises were, but he did not do anything else. E.H. did not recall having a
bruise. Father also claimed Mother had been falsely accusing Father of sexually abusing
E.H. for 12 years.
In a June 15, 2023 addendum report, DPSS expressed concern that Father did not
“see how his behaviors negatively affect[ed]” E.H.; Father believed he did not need and
could not benefit from services; and everything that had happened with E.H. was due to
Mother’s “putting undue pressure” on E.H. DPSS recommended the court declare E.H. a
dependent, order family maintenance services for Mother, and order reunification
services for Father.
On June 19, 2023, E.H. told her therapist she would not “have the will to live” if
she were “forced to move back” with Father, and she did not want to visit or talk to
Father. On June 26, Father enrolled in therapy. Mother was also in therapy and looking
for a parenting education referral.
On July 10, 2023, a social worker spoke with Father about the need to collect
E.H.’s items from Father’s home. That day, Father gave the social worker a large clear
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plastic bag full of E.H.’s belongings E.H. had requested, including clothes, board games,
and art supplies. When the social worker delivered the items to E.H., the social worker
asked E.H. how she was doing, and E.H. said she was “still having some difficulties as
she was experiencing nightmares [about] what she had experienced” when she was with
Father. That evening, Mother texted the social worker, reporting some items Father sent
in the bag with E.H.’s belongings had “ ‘triggered’ ” E.H. The bag included two notes to
E.H. from Father; one note stated, “ ‘[E.H.] will need the rest of her belongings when she
returns home. These will be sufficient for this temporary situation, XOXO.’ ” This note
was found tucked under E.H.’s trumpet in the trumpet case. The other note was written
on a Valentine’s Day card that E.H. had received from her grandparents, and stated,
“ ‘always tell the truth and God will punish those who lie.’ ”
On August 1, 2023, E.H. reported that the note on the Valentine’s Day card was in
Father’s handwriting and was not on the card when E.H. received it from her
grandparents. The bag with E.H.’s belongings also contained the pajamas E.H. was
wearing when she was nine years old and Father pulled her pants down. E.H. wondered
why Father would send the pajamas, which no longer fit her. When she saw the pajamas,
E.H. had a “ ‘panic attack’ ” and needed an emergency therapy session to calm down.
When visiting a cousin on July 29, 2023, E.H. saw videos Father had posted on
social media, showing things E.H. would miss, including her guinea pigs and mutual
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friends she had with Father. The videos made E.H. angry because Father had never
posted videos before, and E.H. felt the videos were directed at her.3
E.H. told her therapist she cut herself on May 21, 2023 due to “ ‘a flood of
intrusive thoughts and flashbacks of her abuse from her father.’ ” E.H. also said Father
would not let E.H. mention “ ‘anything “weird,” ’ ” and E.H. believed the sexual abuse
felt “ ‘normal’ ” when it was happening, but it was not normal. E.H. had nightmares of
Father “ ‘forcing her’ ” to orally copulate him. E.H. gave a “detailed timeline” of
Father’s sexual abuse of her from the time she was three years old to November 2022, the
last time Father rubbed ointment on her breasts.
In July 2023, Father was meeting regularly with his therapist and believed it was
helpful because it allowed him to “vent” about the case and calm his frustration for being
falsely accused of sexually abusing E.H. Father told the social worker he felt “
‘mistreated by the system’ ” and put in “ ‘double jeopardy’ ” because the sexual abuse
accusations had been litigated, and the evidence that exonerated him was not being
allowed because it was “ ‘too old.’ ” Father said he did not blame Mother or E.H. for the
3 The social worker reviewed the videos and screenshots Father had posted on social media. One video showed Father and E.H. lip synching to a song, with the caption “Inseparable Daddy-daughter duo . . . .” Another video showed a split screen, with E.H. lip-synching a song, with Father moving Father’s head to watch E.H. Father also posted a video showing DPSS and law enforcement officers at Father’s house taking E.H. into protective custody, with the caption, “ ‘Hold your kids close. Be the lion at the door. There’s people in this world that will do anything to rip [our] kids away. Even lie. Truth, God and patience wins every time’ ” and, “ ‘Nothing can defeat a father’s love.’ ” Other posts included similar comments, including “ ‘God sees all lies and all lies will be revealed . . . .’ ” Another video showed Father in front of a sign that read, “Each year, upwards of 3.6 million reported incidents of child abuse are investigated in America. But every year, more than 2.8 million of those reports prove false.”
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allegations, and he was looking forward to his parenting program because it would be
about teenagers. Father’s therapist opined Father would not benefit from therapy because
he was in “ ‘constant denial’ ” about having done anything inappropriate with E.H., he
did not understand his boundaries with E.H., and he was “focused on other church
members making false allegations against him.”
On July 14, 2023, DPSS filed an amended petition, alleging jurisdiction over E.H.,
pursuant to section 300, subdivisions (b)(1) and (d), based on the following: “While in
the care and custody of the father, the child, [E.H.], has suffered ongoing sexual abuse by
[Father], in that [Father] sleeps with the child, he has pulled her pants and underwear
down and has asked her to not disclose that they share a bed. An RCAT [Riverside
County Assessment Team] interview was completed on April 28, 2023, in which [E.H.]
disclosed she will sit on her father’s knee, he will then pull her back towards him with his
arms around her stomach. During a second RCAT interview on May 11, 2023, [E.H.]
disclosed that a couple of months ago the father touched her between her legs, on her hips
and on her breast. In addition, [E.H.] described the father’s hands rubbing her thigh over
her clothes. A few days later, the father took her shirt and bra off and rubbed” an
ointment over E.H.’s “breasts very slowly and then on her neck.”
D. Jurisdiction and Disposition
Following pretrial proceedings, the contested jurisdiction and disposition hearing
was held on August 24 and October 4, 2023. The court admitted into evidence the
reports that DPSS filed in the case: the May 3, 2023 detention report; the May 26
jurisdiction and disposition report; and the June 12, June 27, and August 15 addendum
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reports. Two witnesses testified: E.H. and the social worker who began working on the
case on May 26, 2023.
At the conclusion of the hearing, the court sustained the allegations of the
amended petition and found E.H. was described in section 300, subdivisions (b)(1) and
(d)(1). The court removed E.H. from Father’s care (§ 361, subd. (c)), ordered family
maintenance services for Mother and reunification services for Father, and found visits
with Father would be detrimental to E.H. Father appeals from the October 4, 2023
dispositional orders.
III. DISCUSSION
A. Substantial Evidence Supports the Court’s Jurisdictional Findings
Father claims insufficient evidence supports the court’s jurisdictional findings
under section 300, subdivisions (b)(1) and (d); thus, Father argues the court abused its
discretion in sustaining the allegations of the amended petition and declaring E.H. a
dependent. We conclude substantial evidence supports the court’s jurisdictional findings
and assumption of jurisdiction.
1. Legal Principles
At the jurisdictional hearing, the court determines whether the child is described in
any of the categories specified in section 300, and therefore comes under the juvenile
court’s jurisdiction. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185; see § 355,
subd. (a).) The petitioner has the burden of proving by a preponderance of the evidence
that the child is described in section 300. (In re Veronica G., at p. 185.)
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A child comes within the jurisdiction of the court under section 300, subdivision
(b)(1), if “[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 . . . [¶] (A) The failure or inability of the
child’s parent . . . to adequately . . . protect the child.” A child comes within the
jurisdiction of the juvenile court under section 300, subdivision (d), if the “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 the child’s parent . . . .”
Penal Code section 11165.1 provides that “ ‘sexual abuse’ means sexual assault or
sexual exploitation,” and defines sexual assault as conduct in violation of one or more of
several statutes, including section 288 (lewd or lascivious acts upon a child) and former