In re L.A. CA2/2 ( 2023 )

Filed 7/7/23 In re L.A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re L.A. et al., Persons B321643
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
21CCJP05414B-E)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
J.A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Stephen C. Marpet, Judge Pro Tempore. Affirmed.
Robert McLaughlin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________________________
In this juvenile dependency appeal, J.A. (father) challenges
the juvenile court’s jurisdictional findings and removal orders
related to his four minor children. Father argues the court’s
findings and orders were not supported by substantial evidence.
Initially, we address the justiciability of father’s appeal,
including a motion filed by respondent Los Angeles County
Department of Children and Family Services (Department) to
dismiss the appeal. While father’s appeal was pending, the
juvenile court terminated its jurisdiction and issued a final
custody order granting sole physical custody of father’s children
to their mother, father’s wife, M.O. (mother), and joint legal
custody of the children to mother and father. We conclude the
juvenile court’s postappeal orders did not render father’s appeal
moot because the challenged findings and orders continue to
impact father’s rights. In any event, even if father’s appeal had
been rendered moot, we would exercise our inherent discretion to
reach the merits of his appeal. Thus, the Department’s motion to
dismiss the appeal is denied.
As discussed below, we conclude substantial evidence
supports the jurisdictional findings against father as well as the
juvenile court’s removal orders. Thus, we affirm.
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BACKGROUND
1. The Family
Mother and father have four children together, two
daughters and two sons (collectively, mother and father’s
children). When the underlying proceedings began, their
children were nine years old (older daughter), seven years old
(older son), three years old (younger daughter), and one year old
(younger son). Father does not have any other children. Mother
has an older daughter from a previous relationship (half sister).
Half sister was 14 years old when these proceedings began. Half
sister’s biological father is not involved in her life and his
whereabouts were unknown during the underlying proceedings.
At the start of the underlying proceedings, mother and
father lived in a four-bedroom home with their four children, half
sister, a maternal aunt, and a maternal uncle and his child.
Mother and father had dated for 11 years and married a few
months before the underlying proceedings began.
2. Petition and Detention
In September 2021, half sister reported that, the year
before, in July 2020, when she was 12 years old, father had
touched her in a sexual way that made her feel uncomfortable
(July 2020 incident). Half sister explained father was about to go
to the hospital to be with mother, who was there to give birth to
their younger son. Father asked half sister if she wanted to sleep
in his and mother’s bed. Half sister said yes because she could
watch television from that bed. She was wearing a T-shirt and
shorts. Half sister was on the bed with the younger daughter,
who fell asleep in the middle of the bed. Half sister was on one
side of the bed next to the younger daughter, father was on the
other side of his younger daughter. Half sister went to the
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bathroom to brush her teeth. When she returned, the younger
daughter was asleep on the side of bed where half sister had
been. Thus, half sister laid down in the middle of the bed, next to
father.
While they were watching television, father moved closer to
half sister and put his arm around her shoulder. He told her he
was sorry for treating her “bad sometimes” and “wanted to treat
her better.” Father asked half sister “if she wanted to cuddle.”
Although unsure, half sister said, “Ok,” and father cuddled her
while she was wrapped in a blanket. Father asked if she would
share the blanket, but she said no. Father patted her on the
head, which half sister said “ ‘weirded [her] out’ ” and made her
feel “ ‘uncomfortable.’ ” Father put his leg over her leg and
“pressed his lips against her ear.” He then “put his hand on her
stomach and brushed his hand against her vagina.” Half sister
told father to stop, she did not want to cuddle, and she moved
away from him. However, father moved closer to her, again
cuddled her, and put his leg on top of her leg. Half sister started
to cry and, in order to get away from father, said she had to go to
the bathroom, where she cried some more. When half sister came
out of the bathroom, father told her he was sorry and “he was
used to her mom being in the bed with him.” Half sister left the
room and went to sleep in her own room.
Half sister said father never touched her under her clothes.
However, half sister stated that, on a separate occasion, father
came into the bedroom where she slept with her half siblings.
Half sister was trying to sleep when father tried to hug her. She
asked father to leave and he did. Half sister also said father
“rubs up against her” when she is cooking or washing dishes in
the kitchen.
4
Half sister’s report resulted in a referral to the
Department, led to the removal of mother and father’s children
from father, and ultimately the filing on behalf of all the children
of a three-count Welfare and Institutions Code section 300
petition (petition).1 The three counts of the petition were
identical and brought under subdivisions (b), (d), and (j) of section
300. The counts alleged father had “sexually abused” half sister
in July 2020 by “fondl[ing] the child’s vaginal area and stomach
over the child’s clothing, put[ting] his leg on top of the child’s legs
and press[ing] [his] lips against the child’s ear.” The counts
alleged father’s conduct put all the children at risk of physical
harm, including sexual abuse. Mother was non-offending.
At the detention hearing held in early December 2021, the
juvenile court detained mother and father’s children from father
and released them to mother under Department supervision.
The court granted father monitored visitation with his four
children but ordered father to have no contact with half sister.
The court ordered the Department to arrange for a forensic
interview of half sister.
3. Continued Investigation
Prior to adjudication, the Department continued its
investigation.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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a. Half Sister
In January 2022, a Department social worker spoke
separately with half sister, who reiterated what she previously
had reported. Half sister also told the social worker father might
have been trying to kiss her when he pressed his lips against her
ear during the July 2020 incident. She also thought it might
have been accidental when father brushed his hand against her
vagina. She said, “ ‘[M]aybe it was an accident, I don’t think he
did it on purpose, like in a sexual way.’ ” Half sister explained
she had not mentioned father brushing his hand over her vaginal
area to mother because she did not feel comfortable talking about
it and thought father might have done it accidentally. Half sister
said she had a “good relationship” with father until the July 2020
incident. She did not want to visit or talk with father until she
received therapy. Half sister indicated she was “not accustomed
to male figures in her life despite having [father] around for a
majority of her life.”
In early February 2022, half sister submitted to a forensic
interview. During her interview, half sister explained she
“hadn’t been feeling too good about the [July 2020] incident” and
she “just wanted to talk to someone” but she was scared she “was
gonna get in trouble because [she] had said yes to cuddling.”
Eventually, half sister told a friend what happened. That friend
did not know what to say, so half sister “kept it in for a while”
longer. When she “went back to school,”2 half sister told a couple
more friends, one of whom insisted what father did was not
normal and encouraged half sister to talk to an adult about the
July 2020 incident.
2 The timing of when half sister was “back to school” is not
clear, but it appears to have been the fall of 2021.
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Half sister disclosed the incident to her school counselor.
Half sister told the counselor her “biggest concern” was she did
not want her family being “broken up.” She also discussed other
incidents with the counselor involving father brushing against
her in the kitchen when she was washing dishes. Half sister
said, “I think he brushed past me like with his hip” a couple
times “when the space was crowded.”
That night, after half sister spoke with her school
counselor, police officers called mother and father. Half sister
explained she had not told mother about the July 2020 incident
because she was scared. She “didn’t want to be the reason our
family was broken.” She was frustrated and upset that the police
became involved. Half sister had hoped she could talk to her
family about what happened, “say what we think had gone
wrong,” and “go to some type of therapy.” Eventually, half sister
filed a police report.
During her forensic interview, half sister repeatedly stated
she did not like father’s touching and cuddling and it made her
feel uncomfortable. She noted she tried to move away from
father but he “kept getting like closer to me.” She explained she
was lying on her back while father was lying on his side, facing
her, “hugging” her with “one of his legs on top of” her, “petting
[her] head,” tickling her stomach, and “telling [her] like a bunch
of stuff about how he wanted to be affectionate with me but he
was afraid my family would take it the wrong way.” Half sister
stated, “I think his hand slipped [when he was tickling her
stomach] because it touched the front of my shorts.” She was
scared and retreated to the bathroom, where she cried for “a little
bit.” Half sister indicated she was not sure if father touched the
front of her shorts on purpose or by accident.
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During the interview, half sister also said mother told her
father “doesn’t really mean it and he’s sorry . . . . She said that
he is gonna go to a class . . . for like parenting.” Half sister told
mother she did not believe father had bad intentions when he
was touching her.
Half sister told the interviewer father had apologized for
making her feel uncomfortable. Father told half sister he
“thought it was normal to cuddle with me because he cuddles
with my mom and my like siblings. And it’s like he’s showing
them affection, so he didn’t mean it in a bad way.” Father told
her he was not trying to be inappropriate and apologized if it
came across that way. He told half sister he would “move
somewhere else” but she did not want that. She said, “I want my
siblings to still have a dad and I want my dad back too . . . so I
[am] just waiting for this to get cleared up.” She stated, “I feel
like this is just like a bad misunderstanding . . . and I just want
this to get cleared up because honestly I want things to go back to
the way they were.” She wanted to go to family therapy so they
could learn to communicate better.
By May 2022, the Department noted mother was having
trouble enrolling half sister in therapy sessions. Half sister’s
school reported she had begun “to display poor attendance and
poor academic performance recently which appears to be of
concern[ ] especially since the child is not receiving therapy
sessions.”
In the Department’s assessment, although half sister
generally provided a consistent account of events over time, her
“verbiage has shifted where she is now attempting to justify
[father’s] actions by dismissing them as a ‘mistake and accidental
touch’ which are words utilized by the mother during her
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explanation of events.” The Department believed half sister was
minimizing what happened and noted she continued to feel
uncomfortable about having a relationship with father at that
time.
b. Father
Initially, in early October 2021, father denied doing
anything inappropriate to or with half sister. He said “he would
not want someone to do that to his own child so he would not
touch [half sister] or any of his kids.” In reference to the July
2020 incident, father stated he only had watched television in bed
with half sister and his younger daughter.
In January 2022, however, mother reported she had
confronted father about his alleged misconduct. Father told
mother repeatedly “ ‘it was a mistake’ ” and “ ‘he didn’t know
what he was thinking.’ ” He thought he could hug or cuddle half
sister in the same way he hugged and cuddled his own daughters.
Father denied touching half sister’s vaginal area over her clothes.
Despite multiple attempts to speak with father in January
2022, a Department social worker was unable to contact him. A
due diligence search to locate father was unsuccessful.
Nonetheless, it was reported father continued to support his
family financially while he was out of the home.
By April 2022, father was participating in parenting classes
and had been visiting with his children in person every other
weekend as well as on-line. The children “love[d] seeing their
father.” Half sister was not participating in those visits.
c. Mother
Mother had been unaware of the July 2020 incident until
law enforcement became involved. Upon learning of half sister’s
allegations, mother moved half sister into her maternal aunt’s
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bedroom, which had a lock on the door and made half sister feel
safe. Mother revealed her stepfather sexually abused her as a
child. Mother said she believed half sister. Mother and father
agreed father would move out of the house so that mother and
father’s children and half sister could remain in the home with
mother.
In January 2022, mother told the social worker half sister
had not mentioned father had brushed his hand over her clothed
vaginal area. Half sister told mother father had cuddled her from
behind, with his hand on her lower abdomen region, making half
sister feel uncomfortable. Mother believed half sister felt
uncomfortable because father had not been affectionate with her
before. Father told mother he made a mistake and he thought he
could cuddle half sister like he did his own daughters, although
he denied touching half sister’s vaginal area. Mother stated she
felt “like she is experiencing a brain fog,” was unsure what
exactly happened between father and half sister, and was
confused about her relationship with father.
d. Mother and Father’s Children
The older daughter and older son each consistently
reported feeling safe in the home with mother, father, and their
siblings. They denied anyone touching their private parts, and
father did not make them feel uncomfortable. They both wanted
father to return home. The younger daughter and younger son
were too young to make statements, but neither showed signs of
abuse.
The Department consistently reported mother and father’s
children appeared happy and well cared for and had a healthy
bond with their parents.
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4. Adjudication and Disposition
After multiple continuances, a combined adjudication and
disposition hearing was held on May 13, 2022. At the hearing,
counsel for all of the children suggested amended language for
the subdivision (b) count and argued the court should sustain
that count as amended and dismiss the remaining counts brought
under subdivisions (d) and (j). Counsel noted, while half sister
“may have changed how she characterized the [July 2020]
incident with [father], she maintains consistency with what
happened, with how he made her feel uncomfortable. She had to
move away from him and he continued to come close to her and
touch her. She was so uncomfortable that she had to get out of
bed, go into the bathroom and she did start crying. And this
incident did weigh on her to the point that she spoke with her
friends about it and her friends encouraged her to go to her school
counselor.” Counsel for all of the children and the Department
agreed mother and father’s children should remain in the petition
and be subject to the juvenile court’s jurisdiction. Both counsel
believed mother and father’s children were at risk based on
father’s actions toward half sister.
On the other hand, counsel for father argued the juvenile
court should dismiss the petition in its entirety or, in the
alternative, strike mother and father’s children from the petition,
claiming they were differently situated. Counsel stated there
was “no evidence that [father] sexually abused [half sister], let
alone fondled her vagina.” Father’s counsel relied on half sister’s
forensic interview, when she repeatedly stated father may have
touched her vaginal area by accident. Counsel noted the July
2020 incident was a “one-time incident” that did not support
jurisdiction, the children were not at risk of serious physical
11
harm, and none of the children had suffered serious physical
harm. Counsel stated half sister’s “discomfort is simply not
jurisdictional.”
After hearing argument, the juvenile court sustained the
subdivision (b) count as amended and dismissed the remaining
two counts. The amended and sustained subdivision (b) count
replaced the phrase “sexually abused” with “inappropriately
touched [half sister] in the mother’s absence,” and removed
reference to father touching half sister’s stomach and vaginal
area. Specifically, the sustained count read, “[Father]
inappropriately touched [half sister] in the mother’s absence. On
7/16/2020, [father] cuddled the [half sister], put his leg on top of
the child’s legs, and pressed his lips against the child’s ear,
making the child feel uncomfortable and upset. The
inappropriate nature of [father’s] conduct towards [half sister]
endangers the child’s physical health and safety and places [half
sister] and the child’s siblings [mother and father’s children] at
risk of serious physical harm.”
The court declared mother and father’s children and half
sister dependents of the court under subdivision (b) of section
300. The court found half sister’s earlier statements (as opposed
to those made during her forensic interview) to be “the most
important and the best evidence . . . of what happened.” The
court stated “minimizing just is an automatic happening. It just
happens. They forget things. This child not only had this one
incident, . . . she reported one time she was lying in bed and
[father] came in her room. He told her he had to close the . . .
closet door in her room. He proceeded to hug her and she told
him to leave her alone.”
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As to the court’s dispositional orders, counsel for father
strenuously argued mother and father’s children should not be
removed from father’s care. Counsel stated, mother and father’s
children were “very differently situated. This is not a case where
[father] engaged in any aberrant sexual behavior in the children’s
home against their sibling. There is no evidence here that
[mother and father’s children] were aware of [half sister’s]
discomfort around their father. There is no evidence that the
father has abused or neglected his own children. And there’s
certainly no evidence that . . . the father has any proclivity to any
inappropriate sexual behavior, frankly, to any of these children.”
Counsel argued half sister’s “discomfort with [father] is not a
basis, at this point, to keep him out of his own home.” Counsel
for mother also asked the juvenile court to allow father to move
back into the family home.
On the other hand, counsel for the Department argued
father should not be allowed back into the family home. Counsel
noted it had been six months since the detention hearing and
half sister had been participating in counseling at school, yet
half sister still wanted only monitored visits with father.
The juvenile court removed mother and father’s children
from father and placed them in mother’s care under Department
supervision. The court ordered father to participate in a
parenting program, sexual abuse awareness counseling, and
individual counseling. Father was granted unmonitored visits
with his four children in a public setting and monitored visits
with half sister in a public setting. The court granted the
Department discretion to liberalize father’s visits. The court
ordered half sister to participate in individual counseling and, if
13
recommended by her therapist, conjoint counseling with mother
and father.
5. Appeal
Father appealed the juvenile court’s May 13, 2022
jurisdictional findings and dispositional orders.
6. Postappeal Termination of Dependency Jurisdiction
and Final Custody Order
In December 2022, while this appeal was pending, the
juvenile court terminated jurisdiction and entered a final custody
order, granting sole physical custody of mother and father’s
children to mother and joint legal custody to mother and father.
The court allowed father “reasonable unmonitored contact with
the children.” Before father’s visits could be liberalized, the
court’s custody order required father to complete a “sex abuse for
perpetrators program” and individual counseling. Mother was
granted sole physical and legal custody of half sister.
DISCUSSION
1. Justiciability and Motion to Dismiss
As an initial matter, we address the justiciability of father’s
appeal. As noted above, while father’s appeal was pending, the
juvenile court terminated jurisdiction and issued a final custody
order granting sole physical custody of mother and father’s
children to mother and joint legal custody to mother and father.
Father did not appeal those orders. Based on these postappeal
events, the Department moved to dismiss father’s appeal as moot.
The Department argues, even if we agree with father’s
arguments on appeal, we can afford no effective relief. In
addition, the Department claims we should not exercise our
inherent discretion to consider the merits of father’s appeal.
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Father opposes the motion to dismiss and urges us to address the
merits of his appeal.
Recently, in In re D.P. (2023) 14 Cal.5th 266, our Supreme
Court addressed the justiciability of dependency appeals such as
father’s here. The court explained: “A court is tasked with the
duty ‘ “to decide actual controversies by a judgment which can be
carried into effect, and not to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.” ’
[Citation.] A case becomes moot when events ‘ “render[ ] it
impossible for [a] court, if it should decide the case in favor of
plaintiff, to grant him any effect[ive] relief.” ’ [Citation.] For
relief to be ‘effective,’ two requirements must be met. First, the
plaintiff must complain of an ongoing harm. Second, the harm
must be redressable or capable of being rectified by the outcome
the plaintiff seeks.” (Id. at p. 276.)
Particularly relevant here, our Supreme Court noted, when
a jurisdictional finding affects subsequent orders and “continues
to impact a parent’s rights—for instance, by restricting visitation
or custody—that jurisdictional finding remains subject to
challenge, even if the juvenile court has terminated its
jurisdiction. [Citations.] Because reversal of the jurisdictional
finding calls into question the validity of orders based on the
finding, review of the jurisdictional finding can grant the parent
effective relief.” (In re D.P., supra, 14 Cal.5th at pp. 276–277; see
also id. at pp. 277–278.)
Here, in terminating its jurisdiction, the juvenile court
issued a final custody order limiting father’s custody of his four
children and requiring father to complete various programs
before visitation with his children could be liberalized. Thus,
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even though the juvenile court terminated its jurisdiction, its
jurisdictional findings and removal orders continue to impact
father’s rights. If we were to reverse either or both of those
findings and orders, our decision would call into question the
juvenile court’s subsequent orders. Thus, we conclude father’s
appeal is not moot.
Even if father’s appeal was moot, however, we would
exercise our inherent discretion to reach the merits of his appeal.
(In re D.P., supra, 14 Cal.5th at p. 282.) The jurisdictional
findings and subsequent removal order were based on
“stigmatizing conduct” (i.e., engaging in inappropriate sexualized
conduct with a minor stepchild) and “ ‘could be prejudicial to
[father] or could potentially impact the current or future
dependency proceedings,’ or ‘ “could have other consequences for
[father], beyond jurisdiction.” ’ ” (Id. at pp. 285–286.)
Thus, the Department’s motion to dismiss the appeal is
denied.
2. Jurisdiction
a. Applicable Law
In this case, the juvenile court exercised its jurisdiction
under subdivision (b) of section 300. Under that subdivision, a
juvenile court may assert dependency jurisdiction over a child
when, among other things, “[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 or guardian to adequately supervise or protect the
child.” (§ 300, subd. (b)(1)(A).)
“[S]ection 300 does not require that a child actually be
abused or neglected before the juvenile court can assume
jurisdiction.” (In re I.J. (2013) 56 Cal.4th 766, 773.) “The
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legislatively declared purpose of these provisions ‘is to provide
maximum safety and protection for children who are currently
being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection,
and physical and emotional well-being of children who are at risk
of that harm.’ (§ 300.2, italics added.) ‘The court need not wait
until a child is seriously abused or injured to assume jurisdiction
and take the steps necessary to protect the child.’ ” (In re I.J.,
supra, at p. 773.) “ ‘The purpose of dependency proceedings is to
prevent risk, not ignore it.’ ” (Jonathan L. v. Superior Court
(2008) 165 Cal.App.4th 1074, 1104.)
b. Standard of Review
We review the juvenile court’s jurisdictional findings for
substantial evidence. (In re I.J., supra, 56 Cal.4th at p. 773.)
“ ‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings [and disposition order] of
the trial court.” ’ ” (Ibid.) In determining whether substantial
evidence exists such that a reasonable trier of fact could find the
order challenged on appeal is appropriate, we review the entire
record in the light most favorable to the challenged order. (Ibid.)
17
“Substantial evidence is evidence that is ‘reasonable,
credible, and of solid value’; such that a reasonable trier of fact
could make such findings.” (In re Sheila B. (1993) 19 Cal.App.4th
187, 199.) Substantial evidence “ ‘is not synonymous with any
evidence. [Citations.] A decision supported by a mere scintilla of
evidence need not be affirmed on appeal.’ ” (In re Yolanda L.
(2017) 7 Cal.App.5th 987, 992.)
c. Substantial evidence supports the juvenile
court’s jurisdictional findings.
Father argues substantial evidence does not support the
juvenile court’s jurisdictional findings against him. He states he
did not sexually abuse or physically harm half sister, the July
2020 incident with half sister was an isolated event that involved
accidental touching, and his and mother’s four children were
never harmed or at substantial risk of serious harm. In contrast,
the Department argues substantial evidence supports the
jurisdictional findings against father. We agree with the
Department.
Both parties discuss our Supreme Court’s decision in In re
I.J., supra, 56 Cal.4th 766 (I.J.). In that case, the court
addressed the question whether a father’s sexual abuse of his
minor daughter supported the exercise of dependency jurisdiction
over the father’s minor sons. (Id. at p. 772.) The court held it
did, concluding the father’s repeated sexual abuse (including
rape) of his minor daughter in the family home constituted
substantial evidence supporting dependency jurisdiction over all
of the father’s children, regardless of gender and regardless of
whether their father had abused all of them. (Id. at pp. 771, 778.)
Our Supreme Court explained: “[T]he more severe the type of
sibling abuse, the lower the required probability of the child’s
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experiencing such abuse to conclude the child is at a substantial
risk of abuse or neglect under section 300. If the sibling abuse is
relatively minor, the court might reasonably find insubstantial a
risk the child will be similarly abused; but as the abuse becomes
more serious, it becomes more necessary to protect the child from
even a relatively low probability of that abuse.” (Id. at p. 778.)
I.J. is not entirely on point here because it focusses on the
exercise of dependency jurisdiction under subdivision (j) of
section 300, which subdivision is not at issue here. Nonetheless,
we conclude I.J. offers guidance and support for dependency
jurisdiction in this case.
Although, as father points out, his behavior toward half
sister was not as egregious or shocking as that involved in I.J.,
father’s misconduct with half sister was serious and aberrant.
While over time, half sister wavered as to whether father touched
her vaginal area accidentally or on purpose, she otherwise
consistently described the July 2020 incident. She repeated that,
when she told father to stop and tried to move away from him, he
persisted and moved closer to her. He put his leg over her,
making it difficult for her to move away. He pressed his lips to
her ear, as if to kiss her. All of this happened while father’s
younger daughter was asleep in the same bed and mother was
away from the home. Indeed, father’s behavior during the July
2020 incident was serious and aberrant enough that it upset
daughter for over one year. Although she feared she would get in
trouble, half sister eventually confided in friends and a counselor
about the July 2020 incident. Once the underlying proceedings
began, half sister indicated she did not want to visit with or talk
to father until she had received therapy. Moreover, and contrary
to father’s position on appeal, the July 2020 incident was not the
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only reported incident of father’s inappropriate or suspect
behavior. Half sister also had reported that, on more than one
occasion, father rubbed his hips against her in the kitchen and,
once, he came into her room at night when she was in bed and
tried to hug her. Finally, father made inconsistent statements
about the July 2020 incident and was difficult to locate during
the proceedings below. At first, father denied he had done
anything wrong. Later, however, he told mother he had made a
mistake and did not know what he was thinking when he
“cuddled” with half sister in bed.
While not as egregious as the facts in I.J., this case is
similar to In re P.A. (2006) 144 Cal.App.4th 1339, a decision our
Supreme Court discussed (and did not disturb) in I.J., supra, 56
Cal.4th at pages 775–776. In In re P.A., Division Three of this
District affirmed dependency jurisdiction under section 300,
subdivisions (b) and (d), over the appellant father’s nine-year-old
daughter and two younger sons based on the father’s conduct of
touching his daughter’s vagina under her shorts but on top of her
underwear.3 (In re P.A., supra, 144 Cal.App.4th at pp. 1343,
1345–1347.) There was no evidence the father had abused or
touched his sons inappropriately. (Id. at p. 1345.) Nonetheless,
the court explained, “aberrant sexual behavior by a parent places
the victim’s siblings who remain in the home at risk of aberrant
sexual behavior,” and held substantial evidence supported
dependency jurisdiction over the sons. (Id. at p. 1347.)
3The juvenile court also exercised dependency jurisdiction
under section 300, subdivision (b) based on the father’s admitted
domestic violence with the children’s mother. (In re P.A., supra,
144 Cal.App.4th at p. 1343.)
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Similarly, here, father’s aberrant sexual behavior toward
half sister placed father and mother’s children at risk of aberrant
sexual behavior. Although father was not half sister’s biological
father, he was a father figure in the home, where he lived with
half sister, his and mother’s children, and other maternal
relatives. Father’s behavior toward half sister in the family home
was a “betrayal of the appropriate relationship between the
generations” and an abandonment and violation of the parental
role. (I.J., supra, 56 Cal.4th at p. 778.)
Based on the record before us, we conclude substantial
evidence supports the juvenile court’s jurisdictional findings.
3. Removal
a. Applicable Law and Standard of Review
When a child has been adjudged a dependent child within
the meaning of section 300, the juvenile court “may limit the
control to be exercised over the dependent child by any parent” if
necessary to protect the child. (§ 361, subd. (a)(1).) Section 361,
subdivision (c)(1) permits the juvenile court to order a child
removed from his or her parent if the court finds by clear and
convincing evidence that the child is, or would be, at substantial
risk of harm if returned home and there are no reasonable means
by which the child can be protected without removal. The
juvenile court’s jurisdictional findings are evidence that the child
cannot safely remain in the home. (In re A.F. (2016) 3
Cal.App.5th 283, 292.) “ ‘ “The parent need not be dangerous and
the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the
child.” ’ ” (In re A.S. (2011) 202 Cal.App.4th 237, 247,
disapproved on another ground by Conservatorship of O.B. (2020)
9 Cal.5th 989, 1010, fn. 7 (O.B.).) In making its determination,
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the juvenile court may consider the parent’s past conduct as well
as present circumstances. (In re A.S., at p. 247.)
We review the juvenile court’s removal order under the
substantial evidence standard of review. (In re A.F., supra, 3
Cal.App.5th at p. 292; I.J., supra, 56 Cal.4th at p. 773; O.B.,
supra, 9 Cal.5th at pp. 1011–1012 [appellate court reviews
removal order for substantial evidence, bearing in mind the
heightened burden of proof by clear and convincing evidence]; see
In re V.L. (2020) 54 Cal.App.5th 147, 155 [“O.B. is controlling in
dependency cases”].)
b. Substantial evidence supports the juvenile
court’s removal order.
Father argues the juvenile court erred when it removed his
and mother’s children from his custody. Father claims, even
assuming substantial evidence supported the court’s
jurisdictional findings, there was no evidence the children faced
any danger in his custody and there were reasonable alternatives
to removal. We disagree.
The facts supporting jurisdiction, discussed above, also
support the juvenile court’s removal order. Father’s aberrant
behavior toward half sister coupled with his inconsistent
statements about that behavior support a finding that the
conduct could continue and all the children were at risk.
Moreover, even assuming mother and father’s children should not
have been removed from father, it is not clear how father could
have safely returned to the family home, where half sister also
lived. Finally, although the record contains some conflicting
evidence, our role is not to reweigh the evidence or exercise our
independent judgment. (I.J., supra, 56 Cal.4th at p. 773.) Given
the juvenile court’s focus on averting harm to the children, we
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conclude substantial evidence supports the court’s removal orders
here.
DISPOSITION
The Department’s motion to dismiss the appeal is denied.
The juvenile court’s May 13, 2022 jurisdictional findings and
dispositional orders as to father are affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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