In re Gabriel T. CA2/4

Filed 6/24/22 In re Gabriel T. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re GABRIEL T., a Person Coming B313347
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP07244A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JESUS T.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Lisa A. Brackelmanns, Judge. Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, and Peter Ferrera, Principal Deputy County Counsel,
for Plaintiff and Respondent.
Appellant Jesus T. (father) appeals from jurisdiction and
disposition orders declaring his child, Gabriel T., a dependent of the
court, and removing the child from father’s custody. Father contends
there is insufficient evidence to support the jurisdictional findings that
his sexual abuse of Gabriel’s sister, Guadalupe T. (a child not at issue in
this appeal), placed Gabriel at risk of serious physical and emotional
harm. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Gabriel (born July 2006) and his sister Guadalupe T. (born May
2010) came to the attention of the Los Angeles Department of Children
and Family Services (DCFS) on August 14, 2019, when Guadalupe
reported to the police that she had been sexually abused by father
inside his home. Guadalupe reported that while she was on a bed by
herself, father entered the room and got on top of her, kissing
Guadalupe and moving his body “in a[n] up and down motion.” At some
point, Guadalupe pushed father aside and left the room. Inside the
home during the incident were three other adults, Gabriel and
Guadalupe’s stepsister, and Gabriel. Guadalupe also informed police
that father had sexually abused her during two incidents when she was
five and six years old, respectively. Despite having a vague memory of
each incident, she stated that in the first incident, father placed
Guadalupe on a bed and rubbed his penis against her vagina, and in the
second he placed Guadalupe on a couch and placed his penis inside her
vagina.
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Guadalupe restated the allegations in substantial similarity when
first interviewed by a dependency investigator. During Gabriel’s
interview, Gabriel stated that he had never been sexually abused by
father, and was unaware of father’s sexual abuse of Guadalupe prior to
August 2019. Father denied abusing Guadalupe at any time, and
suggested mother had influenced Guadalupe to making the allegations
after father threatened to take mother to court over child custody
issues.
Guadalupe underwent a forensic medical examination and
interview in October 2019. The medical examination revealed no
evidence of trauma, but noted that such findings were not inconsistent
with the majority of sexually abused children. Guadalupe appeared to
be “extremely anxious” while discussing her allegations of sexual abuse
with a forensic evaluator.
In November 2019, DCFS filed a petition under Welfare and
Institutions Code section 300, subdivisions (b), (d), and (j),1 and alleged
that both Guadalupe and Gabriel were at risk of serious physical and
emotional harm and sexual abuse due to father’s abuse of Guadalupe.
The petition alleged that during various times, father had gotten on top
of Guadalupe and attempted to kiss her, and had previously rubbed
and/or inserted his penis in the child’s vagina. The court detained both
children from father, issued a restraining order protecting Guadalupe
1 Undesignated statutory references are to the Welfare and Institutions
Code.
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from father, and ordered DCFS to refer father to individual and family
counseling, parenting, and a sexual abuse program for perpetrators.
In jurisdiction/disposition and interim review reports, DCFS
informed the court that Gabriel was participating in mental health
services. Gabriel was progressing in therapy but continued to exhibit
symptoms of anxiety. In February 2020, Gabriel informed a DCFS
investigator that he believed Guadalupe’s allegations of sexual abuse,
and felt “disgusted for what he (father) did” to her. Also in February
2020, Guadalupe’s therapist reported that the child had informed her
that father would kiss the child’s neck after winning the game “rock,
papers, scissors” when Guadalupe was nine years old.
As of May 2021, DCFS reported that Gabriel continued to refuse
visitation with father, appeared to “hold in his emotions in order to
better to support his sister,” and had difficulty concentrating in school.
Mother completed family preservation, parenting, and a sexual abuse
awareness program, and progressed in her own counseling. Father did
not enroll in any services and denied any wrongdoing. DCFS
recommended that the juvenile court sustain the petition, terminate
jurisdiction with mother having sole physical custody of the children,
and father having monitored visits with Gabriel.
On June 3, 2021, the court held a joint jurisdiction and disposition
hearing. The court admitted DCFS’s reports into evidence before
hearing testimony from Guadalupe. Guadalupe testified that during
the August 2019 incident, father had rolled on top of her, kissed her
neck and lips, and placed his legs between hers. Frightened, Guadalupe
quickly left the room. On two separate occasions when she was between
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three and six years old, father placed Guadalupe under a blanket while
they were inside his room or on a couch. He then kissed her and
“mov[ed] a certain way . . . and [she] kind of felt a little bit of pain.”
Guadalupe could not recall if she saw father’s private parts because the
rooms were too dark.
To conform to proof, the court amended the section 300 petition to
allege that father had sexually abused Guadalupe on three occasions by
getting on top of her and kissing her lips and neck.2 As amended, the
court sustained the petition as to Guadalupe under subdivisions (b), (c),
and (d), and as to Gabriel under subdivisions (b) and (d). The court
dismissed the abuse of sibling count (§ 300, subd. (j)) as to Gabriel,
noting that Gabriel was protected under the counts alleged under
subdivisions (b) and (d). The court declared the children dependents of
the court under section 300, removed them from father’s custody, and
released them to mother. The court then ordered that jurisdiction
would terminate upon issuance of a final family law order. Later, after
receiving a final custody order granting mother sole physical and joint
legal custody of Gabriel, and father supervised visitation with Gabriel,
the court terminated jurisdiction over the children.
2 As to both children, the court struck allegations that father had rubbed
and/or inserted his penis in Guadalupe’s vagina.
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DISCUSSION
1. Jurisdiction
Father contends there is insufficient evidence to support the
jurisdictional finding that his sexual abuse of Guadalupe demonstrated
a substantial risk that Gabriel would suffer sexual abuse or serious
physical harm or illness within the meaning of section 300, subdivisions
(b) or (d). We disagree.
We review the juvenile court’s jurisdictional findings for
substantial evidence. (In re Natalie A. (2015) 243 Cal.App.4th 178,
184.) We must uphold the court’s findings “‘unless, after reviewing the
entire record and resolving all conflicts in favor of the respondent and
drawing all reasonable inferences in support of the judgment, we
determine there is no substantial evidence to support the findings.
[Citation.]’” (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) “‘“We do
not reweigh the evidence or exercise independent judgment, but merely
determine if there are sufficient facts to support the findings of the trial
court.”’” (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).)
We conclude that substantial evidence supports the jurisdictional
finding that Gabriel was at substantial risk of future sexual abuse as
that term is used in section 300, subdivision (d).3 Under section 300,
subdivision (d), the juvenile court may exercise jurisdiction over a child
who “has been sexually abused, or there is a substantial risk that [he or
she] will be sexually abused, as defined in Section 11165.1 of the Penal
3 In light of our conclusion, we do not consider the alternative basis for
the court’s exercise of jurisdiction over the child under section 300,
subdivision (b). (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
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Code, by the child’s parent or guardian or a member of the child’s
household.” As provided in Penal Code section 11165.1, the term
“sexual abuse” encompasses child molestation, which in turn is defined
as any act by a defendant that “annoys or molests any child under 18
years of age.” (Pen. Code, § 647.6, subd. (a)(1).) Child molestation
“‘does not require a touching [citation] but does require (1) conduct a
“‘normal person would unhesitatingly be irritated by,’” [citations], and
(2) conduct “‘motivated by an unnatural or abnormal sexual interest’” in
the victim [citations].’ (People v. Lopez (1998) 19 Cal.4th 282, 289.)” (In
re Karen R. (2001) 95 Cal.App.4th 84, 89–90.) “‘The forbidden
annoyance or molestation is not concerned with the child’s state of
mind, but rather refers to the defendant’s objectionable acts that
constitute the offense.’” (Id. at p. 90.)
Here, father does not dispute the sustained findings regarding his
sexual abuse of Guadalupe. Those findings are supported by the
evidence, which demonstrated that on at least three occasions father
inappropriately mounted, groped, and kissed Guadalupe. The first
incident occurred when Guadalupe was around three years old; the
more recent incident occurred when she was nine years old. During at
least one incident, Gabriel, another child (a stepsister), and three adults
were present inside the family home. At no point did father take
responsibility for his actions; instead, he suggested that mother had
prompted Guadalupe to contrive the allegations.
That Gabriel was in the family home on one occasion as father
was sexually abusing Guadalupe reasonably suggested that Gabriel
himself “was at risk of being a victim of sexual abuse as defined in
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section 300, subdivision (d).” (In re Ricky T. (2013) 214 Cal.App.4th
515, 523; accord, In re Ana C. (2012) 204 Cal.App.4th 1317, 1332 (Ana
C.) [father’s sexual abuse of 11-year old on living room couch where
abuse was “capable of being observed” by other children placed all
children in the home at risk of similar abuse]; In re Andy G. (2010) 183
Cal.App.4th 1405, 1414 [upholding jurisdictional findings based on
father’s sexual abuse of the son’s half-sister while the son was “in the
same room [but] facing in the other direction”]; see also Los Angeles
County Dept. of Children & Family Services v. Superior Court (2013)
215 Cal.App.4th 962, 968 [“[c]ases overwhelmingly hold that sexual
abuse of one child may constitute substantial evidence of a risk to
another child in the household—even to a sibling of a different sex or
age”].)
Father raises several arguments in this appeal, none of which has
merit. Father’s primary assertion is that the court erred by failing to
make an express finding that Gabriel was abused or at risk of abuse
under subdivision (d) of section 300, and instead “just lumped him in
with the allegations involving Guadalupe.” Father never raised this
argument in the proceedings below, and never objected to the amended
petition as to Gabriel on any ground. Thus, the issue is forfeited on
appeal. (See Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676,
686; In re Christopher C. (2010) 182 Cal.App.4th 73, 82; In re David H.
(2008) 165 Cal.App.4th 1626, 1640.) In any event, the argument is
meritless, as the juvenile court sustained the amended counts under
section 300, subdivisions (b) and (d) as to both children, and expressly
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declared “the children” (i.e., both Guadalupe and Gabriel) dependents of
the court. No further finding was required. (See § 356 [“the court shall
make a finding, noted in the minutes of the court, whether or not the
minor is a person described by Section 300 and the specific subdivisions
of Section 300 under which the petition is sustained”].)
Father also asserts that his conduct was not egregious enough to
warrant concern he would sexually abuse Gabriel in the future. In this
regard, he distinguishes his own conduct from several other cases. (See
I.J., supra, 56 Cal.4th at p. 771 [father raped child and fondled the
child’s vagina]; Ana C., supra, 204 Cal.App.4th at pp. 1320–1323
[mother’s adult partner raped, orally copulated, and molested child].)
While the sustained findings as to father’s conduct here may not be as
extreme as the conduct appearing in I.J. and Ana C., this does not mean
the risk to Gabriel “is nonexistent or so insubstantial that the juvenile
court may not take steps to protect the son[ ] from that risk.” (I.J.,
supra, at p. 780.) The repeated sexual abuse of Guadalupe constitutes
aberrant sexual behavior and a violation of father’s parental role over
his children. “‘When a parent abuses his or her child, . . . the parent
also abandons and contravenes the parental role. Such misparenting is
among the specific compelling circumstances which may justify state
intervention, including an interruption of parental custody.’” (Id. at
p. 778, quoting In re Kieshia E. (1993) 6 Cal.4th 68, 76–77.) The serious
and prolonged nature of father’s sexual abuse of Guadalupe
necessitated ongoing mental health treatment to treat Gabriel’s
symptoms of anxiety. Courts must “‘not discount the real possibility
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that brothers of molested sisters can be molested [citation] or in other
ways harmed by the fact of the molestation within the family. Brothers
can be harmed by the knowledge that a parent has so abused the trust
of their sister. They can even be harmed by the denial of the
perpetrator, the spouse’s acquiescence in the denial, or their parents’
efforts to embrace them in a web of denial.’” (Id. at p. 776, quoting In re
Rubisela E. (2000) 85 Cal.App.4th 177, 198, disapproved on another
ground in I.J., supra, 56 Cal.4th 766.)
Finally, father asserts that because Guadalupe is currently
protected from father and Gabriel wants nothing to do with him, there
is no risk of sexual abuse to Gabriel in the future. The absence of
future opportunity to sexually abuse Guadalupe is not evidence of
father’s remorse or reformation. (See Los Angeles County Dept. of
Children & Family Services v. Superior Court, supra, 215 Cal.App.4th
at p. 970 [observing in response to father’s argument that abuse of
stepdaughter occurred years earlier that “it was mother’s installation of
locks on the doors and taking father’s key that likely stopped the abuse,
not any change in father’s desire for sex with preteen girls”].) In sum,
we conclude that substantial evidence supports the court’s finding that
Gabriel is a dependent of the court under subdivision (d) of section 300.
2. Disposition
Father contends that because insufficient evidence supported the
juvenile court’s finding that his sexual abuse of Guadalupe posed a risk
of harm to Gabriel, the disposition order over Gabriel must be vacated
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as moot. Because we uphold the court’s exercise of jurisdiction over
Gabriel, father’s challenge to the disposition is without merit.
DISPOSITION
The court’s jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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