APPEAL from judgments of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed in part, reversed in part and remanded with directions. (Super. Ct. No. EJ3104A-D).
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
R.M. appeals jurisdictional and dispositional orders in which the trial court found that R.M.'s children were children described by Welfare and Institutions Code*fn1 section 300, subdivisions (d) or (j), and removed the children from parental custody under section 361.5, subdivision (c).
We conclude that there is substantial evidence to support the trial court's findings that R.M.'s husband, George R., Sr.,*fn2 sexually abused R.M.'s two oldest daughters, Guadalupe R. and Maria R., within the meaning of section 300, subdivision (d), and that R.M.'s daughter, Kelly R., was at substantial risk of being sexually abused within the meaning of section 300, subdivision (j). We further conclude that there is substantial evidence to support the trial court's findings that returning Guadalupe, Maria and Kelly to the home would pose a substantial danger to their physical health, safety or well-being, and that there were no reasonable means to protect their physical health without removing them from the home. (§ 361, subd. (c)(1).)
With respect to R.M.'s son, George R., Jr., we conclude that there is not substantial evidence to support the trial court's finding that he was at substantial risk of being sexually abused under subdivision (j), as that phrase is defined in section 300, subdivision (d). Section 300, subdivision (d) specifically defines "sexual abuse" by reference to the Penal Code.
However, we further conclude that section 300, subdivision (j), does not limit the grounds of dependency adjudication for a child whose sibling has been abused to the same subdivision of section 300 that applies to that sibling. Rather, the plain language of section 300, subdivision (j), directs the trial court to consider whether there is a substantial risk that the subject child will be abused or neglected, as defined in subdivisions (a), (b), (d), (e), or (i).
Because our interpretation of section 300, subdivision (j), expands the grounds on which some reviewing courts have previously approved taking jurisdiction of a child in George, Jr.'s, position, and at the same time, limits the application of subdivision (d) as applied through subdivision (j), we conclude that we should remand the matter as to George, Jr., in order to allow the Agency the opportunity to assess any harm that George, Jr., may have suffered, or any risk to him that may exist, in the family home under section 300, and to amend the petition, if so indicated.
FACTUAL AND PROCEDURAL BACKGROUND
R.M. and George R., Sr. (George or father), are the married parents of three daughters and one son: Guadalupe, Maria, Kelly, and George, Jr. (collectively, the children). The children are currently 14, 12, 10 and 8 years old, respectively. In addition to these children, George has three adult children from his first marriage―two daughters, Kristina and Amy, who testified in these proceedings, and a son.
On June 5, 2009, the San Diego County Health and Human Services Agency (the Agency) detained the children in protective custody after Guadalupe told a school counselor that George had sexually abused her, and said that he had been abusing her for at least five years. When Maria was interviewed shortly after Guadalupe's disclosure, she told a social worker that George had touched her on her private parts, but said that he had not done so for a long time.
Kelly denied that she had been sexually abused.
George, Jr., denied that anyone had ever touched him inappropriately. The Agency did not obtain any other evaluation or assessment of George, Jr.
When the Agency informed R.M. of Guadalupe's and Maria's (together, the girls) allegations of sexual abuse, R.M. said that they were lying. R.M. believed that Guadalupe had made up the story, on the advice of her friends, in order to avoid incurring consequences for her defiant behaviors, which had been increasing throughout the school year.
The Agency encouraged R.M.to participate in services designed to teach nonprotecting parents of sexually abused children how to protect their children from further abuse. However, R.M. refused to cooperate with the Agency. In addition to refusing to participate in services, R.M. engaged in inappropriate discussions with the children concerning the details of the case, and repeatedly told the children that George loved them. R.M. also gave the children gifts from George, despite the fact that the court had issued a restraining order prohibiting George from having either direct or indirect contact with the children. All of the children told the social worker that they wanted to return home to live together with their mother.
In August 2009, George's adult daughters, Kristina and Amy, who had never met the children, learned of the dependency proceedings and contacted the Agency. Amy reported that George had sexually molested her over a period of nine years, beginning when she was five years old, and said that the abuse stopped only when her parents separated. Amy was concerned about the children's welfare because, according to Amy, George could be aggressive and angry, and he knew how to manipulate people.
Kristina reported that she had witnessed George sexually abuse Amy when she and Amy were young. Kristina asserted that George had sexually abused other victims, including one of their cousins, their friends, and others who were developmentally delayed. When Kristina told George that she did not respect him because he abused children, George hit her in the face, splitting her lip. According to Kristina, during a recent telephone conversation, George told her that he had convinced the children to recant their allegations of sexual abuse, and said that he had instructed Kelly to say that Guadalupe had fabricated the allegations because George would not allow Guadalupe to have a boyfriend.
The contested jurisdiction and disposition hearing was held on September 4, 2009. In reports that were admitted in evidence, the Agency stated that when Guadalupe first disclosed the sexual abuse, she initially told the school counselor that there was "a girl who has a dad who comes into her bed at night." Guadalupe then admitted that she was talking about her father. Guadalupe told the counselor that her father would come into her bed at night and touch her "private parts." He put his hands under her clothing, and she could feel his penis against her. She would pretend to be asleep while her father was touching her. Guadalupe reported that her father had been engaging in this type of behavior since she was five years old. She stated that the molestation had "always happened" and that she did not know whether her father's behavior was normal.*fn3
The social worker interviewed Maria and asked her whether either parent had ever made her do anything that she did not want to do. Maria began to cry. The social worker then asked Maria whether anyone had ever touched her private parts. Maria cried for approximately five minutes and then said, "[Y]es... my dad would touch me." She immediately added, "but not anymore, not for a long time." Maria was crying and trembling when she disclosed the molestation.
Forensic interviews of Guadalupe, Maria and Kelly were conducted six days after Guadalupe and Maria made their initial disclosures. Guadalupe rebuffed the interviewer. She said that the interviewer already knew what had happened, and that if the interviewer wanted additional details, the interviewer could ask the school counselor, the social worker or the law enforcement officer. Maria refused to answer any questions. Kelly denied having been abused by her father and stated that Guadalupe had fabricated the allegations because Guadalupe did not want to go to boot camp.
During later forensic interviews, Maria retracted her allegation that her father had sexually molested her, and instead maintained that her father had not touched her on her private parts. Maria said that she believed Guadalupe had made up the allegations about their father because he would not allow Guadalupe to see her boyfriend. During these later interviews, Guadalupe refused to answer questions about her father's sexual abuse.
Kristina testified that she is two years older than Amy. During the summer between 7th and 8th grades, she observed George approach Amy from behind. He bent down and started rubbing his genitalia against Amy while fondling her breasts. According to Kristina, George was wearing "insanely short shorts" at the time, and was not wearing underwear. His penis was visible. Amy was able to get away from him.
Kristina said that she could not recall other specific incidents of George sexually abusing Amy, but remembered that George was always putting his hands on or near Amy's breasts, pulling her toward him, and making her sit on his lap. Kristina recalled that George's abuse of Amy began when Amy was approximately seven years old and continued until Amy was 13 or 14. Kristina testified that George had admitted to Kristina, Amy and their mother, that he had sexually abused Amy.
Kristina did not have any specific memory of having been sexually abused as a child. However, she believed that George had sexually abused her, as well, because of certain emotional reactions that she recalled having when she was five years old, and also because of the vulnerability that she had felt throughout her adult life.
Amy testified that throughout her childhood, George would rub himself against her rear, make her sit on his lap, touch her breasts, and put his hands in her pants. She recalled a specific event that occurred when she was nine years old. On that occasion, George took her to an amusement park. On the drive home, he insisted that Amy sit in the front seat with him. When Amy became sleepy, George told her to lay her head in his lap for comfort. He then reached over and fondled her private parts.
Amy testified that the last incident of sexual abuse occurred when she was 13 or 14 years old. On that occasion, George pushed Amy down onto the bed. He put his mouth on her breasts, pulled her pants down, and then put his mouth on her "woman private area." When Amy told George to stop, he replied that Amy was "being silly" and that she "needed to relax."
Amy testified that her cousin had disclosed that George had inappropriately touched her, too. According to Amy, when the cousin's parents learned of the abuse, there was "a big scene."
Guadalupe testified that she had told the truth when she informed the school counselor, the police officer, and the social worker that George had abused her. Guadalupe said that George had touched her in a way that she did not want to be touched. She stated that R.M. did not care about her and did not pay attention to her.
Maria said that she had never seen her father touch Guadalupe inappropriately. Maria also said that she did not believe Guadalupe's account of having been sexually molested by their father because their father was "really nice," and would buy her whatever she wanted.
R.M. testified that after listening to all of the testimony presented at the hearing, she still did not believe that George had sexually molested any of his daughters.
The social worker testified that, in her view, R.M.'s lack of insight presented a risk to the ...