California Court of Appeal May 1, 2013 No. D062696Unpublished
Filed 5/1/13 In re F.B. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 F.B. et al, Persons Coming Under the Juvenile Court Law. D062696 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J516449B/C/D/E) Plaintiff and Respondent,
v.
CHARLES B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Ronald F.
Frazier, Judge. Affirmed.
Charles B. appeals jurisdictional and dispositional orders concerning four of his
children, F.B., G.B., C.B. and E.B. (together the children). He contends jurisdiction over
the children was not proper under Welfare and Institutions Code1 section 300,
subdivision (d) because there was no evidence any of them had been or were at risk of
being sexually abused; and jurisdiction was not proper under section 300, subdivision (b)
because there was no evidence they were at substantial risk of serious physical harm or
illness. He also asserts the court erred by ordering the children removed from his
custody. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On May 31, 2012, the San Diego County Health and Human Services Agency
(Agency) petitioned on behalf of nine-year-old F.B., seven-year-old G.B., six-year-old
C.B., and five-year-old E.B. under section 300, subdivision (d), alleging the children
were at substantial risk of harm because Charles had sexually abused a six-year-old
unrelated female child. The petitions alleged that Charles, while in bed with the children,
had anal intercourse with the child, showed her his penis, asked her to orally copulate
him, touched her vagina, and had her lick his nipples while she touched him. Charles
was arrested and charged with committing lewd and lascivious acts with a child under 14.
The petitions were later amended to include allegations under section 300, subdivision
(b), that the sexual abuse of this girl placed the children at risk of serious harm because
1 Statutory references are to the Welfare and Institutions Code unless otherwise specified. 2
Charles had shown an inability to adequately supervise them by exposing them to this
conduct.2
F.B., G.B., C.B. and E.B. each denied Charles had inappropriately touched them,
and they denied seeing him touch any other children in a sexual manner. S.E., Charles's
neighbor, said that when her three daughters returned home from spending time in
Charles's home, her 12-year-old daughter reported she had seen her six-year-old sister in
a bedroom with Charles and the six-year-old's pants were down around her ankles. When
questioned, the six-year-old said Charles had been touching her private area and pointed
to her vagina. S.E. said Charles told her daughter to put his "pickle" (penis) in the
daughter's mouth and had forced her to have anal intercourse with him while his own four
children were in the same bed. The alleged victim also said Charles had forced her to
lick his nipples and this activity had occurred several times. There also was evidence
Charles had sexually abused the six-year-old's ten-year-old sister.
During forensic interviews, the six-year-old alleged victim said Charles forced her
to orally copulate him, and he anally penetrated her, rubbed his hand on her vagina, and
forced her hand on his penis while she sucked his nipples. He told her not to tell anyone.
The ten-year-old alleged victim said Charles began touching her when she was eight or
nine. She said at first he was nice, but then began telling her to "suck the pickle" and
2 F.B., G.B., C.B. and E.B had earlier been dependent children of the juvenile court in 2006 because their mother, L.A., abused drugs. L.A. did not successfully participate in the court-ordered services offered to her and in 2008, the court awarded physical custody to Charles.
3
anally penetrated her. She said some of the other children were present when it
happened, and it happened more than once, but she was afraid to tell anyone. Both girls
also said they had seen Charles touch F.B. and G.B. on their buttocks.
4
The 12-year-old sister of the alleged victims said she had walked into Charles's
bedroom and saw her little sister pulling up her pants. The other children were asleep on
the bed. She said her sister, F.B. and G.B. always lay on top of Charles and got under the
covers while he rubbed their buttocks.
Charles denied committing any sexual abuse. He said he allowed his children and
the neighbor children to lie on his bed to watch television.
The children gave various accounts of the sleeping arrangements in Charles's
home. F.B. reported Charles slept alone, and the children slept in another bedroom, but
that C.B. and E.B. sometimes slept with Charles when they were afraid at night. F.B.
said she sometimes lay on Charles's bed, but she did not sleep with him. She said two of
her friends, M. and T., sometimes spent the night, but they never slept in Charles's
bedroom although they might go into the room to ask him for something. G.B. said she
and C.B. slept with Charles, but F.B. and E.B. did not. She said F.B.'s friend, T., slept in
Charles's room, and Charles let her do so because he did not want to be mean. C.B. said
three friends spent the night. Two slept with him and his siblings, but T. slept with
Charles. C.B. said T. begged Charles to let her spend the night with him because his bed
was warm and soft. E.B. said he and G.B. slept in their own room, and F.B. and C.B.
slept with Charles. He also said his friend, M., slept with Charles.
At the jurisdictional and dispositional hearing, the court considered the
documentary evidence and found the allegations under section 300, subdivisions (b) and
5
(d) to be true. It found the children were at substantial risk in Charles's custody and
ordered them placed in relative care.
DISCUSSION
I
Charles contends there was not substantial evidence to support the jurisdictional
findings.
A reviewing court must uphold a juvenile court's findings and orders if they are
supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-
1037.) "[W]e must indulge in all reasonable inferences to support the findings of the
juvenile court [citation], and we must also ' . . . view the record in the light most
favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973)
31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is
insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412,
420.)
Substantial evidence supports the true finding under section 300, subdivision (d)
that the children were at substantial risk of sexual abuse because Charles had sexually
abused a six-year-old non-related girl while the children were present in the same bed.
The fact the court did not find Charles had sexually abused his own children is not
conclusive. A juvenile court is not required to wait until a child is actually hurt before
assuming jurisdiction. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136,
disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748,
6
fn. 6.) The statutory language of section 300, subdivision (d) specifically allows
jurisdiction based on substantial risk of sexual abuse to the child.3
The six-year-old alleged victim gave a detailed description of the sexual abuse she
had endured. She said on more than once occasion Charles had forced her to orally
copulate him, he had anally penetrated her, he rubbed her vagina so hard that it hurt, and
he forced her to masturbate him. She said Charles's children were in the bed most of the
time the abuse was occurring, and she had seen Charles touch F.B. and G.B. on their
buttocks when they were in bed with him. The ten-year-old victim described similar
abuse. Substantial evidence was presented that there was substantial risk of sexual abuse
to the children.
We reject Charles's argument there was no evidence his children had witnessed
any abusive behavior. The court found true the allegations that Charles had sexually
abused the six-year-old girl and that his children were present in the bed. Charles's
argument the court erred by relying on In re R.V. (2012) 208 Cal.App.4th 837 is without
merit. Although In re R.V. is factually distinct from this case in that there was strong
evidence that R.V. witnessed the sexual abuse and had even helped the victim try to resist
the father's advances (id. at p. 846), here, the court found the children were present during
Charles's abuse of the victims. The evidence provides ample support for the court's
finding that Charles exposed the children to his behavior.
3 Section 300, subdivision (d) provides in part that a child comes within the jurisdiction of the juvenile court when "[t]he child has been sexually abused, or there is a substantial risk the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent . . . ." 7
Relying on In re Maria R. (2010) 185 Cal.App.4th 48, Charles argues even if this
court were to uphold the juvenile court's finding that F.B. and G.B. were at risk, there
was no evidence of substantial risk to the two boys, C.B. and E.B. There is a split of
authority on the issue of whether evidence of sexual abuse of girls presents substantial
evidence of substantial risk of sexual abuse to boys. (See In re P.A. (2006) 144
Cal.App.4th 1339, 1347; In re Andy G. (2010) 183 Cal.App.4th 1405, 1414; In re
Maria R., supra, 185 Cal.App.4th at pp. 65-67; In re Rubisela E. (2000) 85 Cal.App.4th
177, 197-199.) The California Supreme Court has granted review on the issue. (In re I.J.