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In Re R.V., Jr., A Person Coming Under the Juvenile Court v. R.V.

August 20, 2012

IN RE R.V., JR., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
R.V., SR., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. (Super. Ct. No. SJ12661B)

The opinion of the court was delivered by: Huffman, Acting P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

R.V., Sr., (the father) appeals a judgment declaring his minor son, R.V., Jr., (R.V.) a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (j),*fn1 and removing him from parental custody based on findings R.V. was at substantial risk of sexual abuse by the father, who had sexually abused R.V.'s older sister. The father contends: (1) the evidence was insufficient to support the court's jurisdictional finding that R.V. was at substantial risk of sexual abuse within the meaning of section 300, subdivision (j); (2) allowing the petition to be amended to allege harm or risk of harm other than sexual abuse would violate the father's due process rights; and (3) there was no substantial evidence to support the court's dispositional order removing R.V. from his mother's custody. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2011, the San Diego County Health and Human Services Agency (Agency) received a referral that the father had been molesting R.V.'s 10-year-old half sister, Y.R.*fn2 Y.R. reported the father touched her breasts, put his hand inside her panties and forced her to watch a pornographic movie with him while he exposed his genitals to her. Agency initially did not remove Y.R. or R.V. from the home. Instead, the social worker helped their mother, M.V. (the mother), develop a safety plan that included no contact between the father and the children.

The mother began to question Y.R.'s honesty regarding the allegations of sexual abuse, claiming Y.R. had a history of lying and she had no negative behaviors associated with having been molested. Consequently, Agency filed petitions in the juvenile court on behalf of both children. As to three-year-old R.V., the petition alleged he was at substantial risk of sexual abuse because the father had sexually abused Y.R. (§ 300, subd. (j).)

Y.R. reported the father had been sexually abusing her on a weekly basis for at least eight months. The father forced Y.R. to lie down on the bed while he tried to remove her skirt. Y.R. resisted by kicking or pinching the father. Y.R. experienced pain when the father fondled her genital area. She said R.V. was often present in her bedroom and observed the father molesting her. She was concerned that R.V. was learning this behavior, and that the father would eventually molest R.V. When R.V. saw the father inappropriately touching Y.R., he would hit him on the back. Y.R. told R.V. to help her by hitting the father to make him stop touching her. Y.R. said the father often bathed naked with R.V. According to M.V., the father routinely kissed both children on the mouth.

The social worker learned that the mother had taken Y.R. to Tijuana for a psychological evaluation in an attempt to confirm that no sexual abuse had occurred. At Agency's request, the court issued a protective custody warrant to remove R.V. and Y.R. from the mother's custody and detained them in out-of-home care. The court ordered a minimum of three supervised visits a week for the mother and no contact between the children and the father.

Y.R. continued to give consistent details about the sexual abuse. She was afraid the mother would never believe the abuse occurred and would continue to accuse her of lying. Y.R. was also afraid the mother wanted to stay in a relationship with the father.

During an interview by the social worker, the mother acknowledged the father may have sexually abused Y.R. as a result of the many problems the mother and father had been having. The mother also admitted her depression caused her to sleep a lot and she failed to attend to the children's needs. The father denied any inappropriate touching. He said Y.R. was manipulative and demanding, and she sometimes did things to make him angry because he was a strict disciplinarian. He believed maternal relatives had coerced Y.R. into making these allegations.

At the contested jurisdiction and disposition hearing, the court received in evidence Agency's various reports. Marisol Olguin, a forensic interviewer at Rady Children's Hospital, Chadwick Center for Children and Families, testified she interviewed Y.R., who disclosed the father had sexually abused her.*fn3 Y.R. described the various ways the father had touched her, including fondling and kissing her breasts under her training bra, digital-vaginal penetration which caused her pain, penile-vaginal penetration on one occasion and forcing her to touch his genitals. Y.R. said R.V. was present when some of this occurred. Because R.V. had witnessed the molestation, Olguin considered him to be a potential victim of sexual abuse.

Social worker Lizeth Alvarez testified she had conducted a formal risk and safety assessment in this case, and recommended the court assume jurisdiction and remove the children from the parents' custody. As part of her assessment, Alvarez considered the mother's mental health issues, her alcohol abuse and her inability to protect the children. In Alvarez's opinion, the mother was unable to protect the children because she did not believe the sexual abuse had occurred.

The mother testified, admitting she took R.V. to Tijuana and left him in the care of the father in violation of the no-contact agreement she had with Agency. The mother still did ...


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