California Court of Appeal Jan 6, 2015 No. D066297Unpublished
Filed 1/6/15 In re Brianna V. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re BRIANNA V. et al., Persons Coming Under the Juvenile Court Law. D066297 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ1170 A-C) Plaintiff and Respondent,
v.
RICARDO V.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of San Diego County,
Edlene McKenzie, Commissioner. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Ricardo V. appeals findings and orders adjudicating his children dependents of the
juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (d).1
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ricardo V. and N.B. have three children, Brianna V., Nicolas V. and R.V.
(collectively, the children), who are now ages 10, eight and six years old, respectively.
In September 2013, the San Diego County Health and Human Services Agency
(b)). (Pen.Code, § 11165.1.) Sexual assault includes, but is not limited to, "[t]he
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;" and the
"intentional masturbation of the perpetrator's genitals in the presence of a child." (Ibid.)
We review the trial court's findings to determine whether there is substantial
evidence in the record to support the findings. We do not reweigh the evidence, evaluate
the credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden
to demonstrate there is no evidence of a sufficiently substantial nature to support the
findings or orders. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We draw all 4
legitimate and reasonable inferences in support of the judgment. (Candari v. Los Angeles
Unified School Dist. (2011) 193 Cal.App.4th 402, 408.)
C
There Is Substantial Evidence to Support the Findings of General Neglect
We are not persuaded by Ricardo's argument the children were no longer at risk of
harm at the time of the jurisdictional hearing because their medical needs had been met.
The juvenile court could reasonably determine the children had suffered serious physical
harm as a result of their parents' neglect and without intervention to protect the children,
they would remain at substantial risk of harm.
The record contains ample evidence to show the parents neglected the children's
medical needs, causing serious physical injury to the children. In 2009, twice in 2011,
and three times in 2012, the school nurse referred Brianna to an audiologist to evaluate
her hearing. The parents did not follow up on the referrals. By the time Brianna was
evaluated in December 2012, she had only 20 percent of her hearing and required
surgery. The parents missed the surgery date. Agency personnel transported Brianna to
her medical and surgical appointments. She struggled in school due to her vision and
hearing problems, and was held back a grade. When Brianna and Nicolas had high fevers
at school, the parents did not respond appropriately. Brianna needed glasses, which were
obtained with the help of the Agency. The parents postponed taking Brianna to the
doctor for an ear infection for nine days. Four days after her appointment, they still had
not picked up her medication. Brianna needed to have two molars removed.
Nicolas also needed glasses, which the parents did not obtain on their own. His
parents had neglected his dental needs, and at the time of the jurisdiction hearing, Nicolas 5
had a toothache. R.V. also needed to see a dentist. He had moderate hearing loss and
was evaluated for surgery. At the time he was detained in protective custody, R.V. had
an untreated ear infection.
Past conduct of a parent may be probative of current conditions if there is a reason
to believe the neglectful conduct will continue. (In re S.O. (2002) 103 Cal.App.4th 453,
461.) Here, the parents had a five-year history of neglecting their children's health needs.
They did not respond appropriately when informed their children were ill. Although the
Agency assisted the parents in meeting some of the children's needs, preventive services
were ineffective in improving the parents' ability to identify those needs and obtain
appropriate care for their children. Accordingly, we conclude there is substantial
evidence to support the court's finding the parents' neglect presented a continued risk of
harm to the children.
D
There Is Substantial Evidence to Support the Sexual Abuse Findings
We reject Ricardo's characterization that his sexual abuse of his children was
merely his way of demonstrating affection. R.V. said his father touched his own penis
while he touched R.V.'s penis. Nicolas also said his father touched his penis. When
asked separately by a social worker to show on a pen how their father touched himself,
each boy used his entire hand and moved it several times from the middle of the pen to
the end of the pen. Brianna said her father masturbated when he touched R.V. and
Nicolas. The court could reasonably infer from these descriptions Ricardo's actions were
sexually motivated. Nicolas indicated the touching made him feel sad. R.V. indicated it
made him feel angry. Ricardo acknowledged R.V. asked him to stop touching him, but 6
he did not stop. This constitutes substantial evidence that Ricardo sexually abused his
sons within the meaning of section 300, subdivision (d), and Penal Code section 11165.1.
Children who are exposed to a parent's sexual abuse of a sibling are also victims of
sexual abuse. (In re R.V., Jr. (2012) 208 Cal.App.4th 837, 846; In re Ana C. (2012) 204
Cal.App.4th 1317, 1332.) Brianna witnessed her father's sexual abuse of her brothers.
Her teacher discovered Brianna masturbating at school. Brianna said Ricardo touched
her once but it was a mistake because he thought she was a boy. Brianna was afraid her
mother would hit her if she gave any additional information to the social worker. There
is substantial evidence to support the finding that Brianna had been sexually abused, or
was at substantial risk of sexual abuse. (§ 300, subd. (d).)
DISPOSITION
The findings and orders are affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
7
AI Brief
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Holding. The court affirmed the juvenile court's jurisdictional findings and orders, concluding that substantial evidence supported the determination that the children were at risk of harm due to parental neglect and sexual abuse.
Issues
Whether substantial evidence supports the juvenile court's findings of neglect under Welfare and Institutions Code section 300, subdivision (b).
Whether substantial evidence supports the juvenile court's findings of sexual abuse under Welfare and Institutions Code section 300, subdivision (d).
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The juvenile court could reasonably determine the children had suffered serious physical harm as a result of their parents' neglect and without intervention to protect the children, they would remain at substantial risk of harm.”
“This constitutes substantial evidence that Ricardo sexually abused his sons within the meaning of section 300, subdivision (d), and Penal Code section 11165.1.”
“There is substantial evidence to support the finding that Brianna had been sexually abused, or was at substantial risk of sexual abuse.”