California Court of Appeals, Second District, First Division
In re A.A., a Person Coming Under the Juvenile Court Law.
J.A., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v.
On remand from Supreme Court; pub. order Date: 11/21/13
APPEAL from orders of the Superior Court of Los Angeles County No. CK90652. Stephen Marpet, Commissioner. Reversed.
Catherine C. Czar, under appointment by the court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.
J.A. (father) appeals from orders declaring his sons Alexis and Jason dependents of the court and removing them from his custody. In our initial opinion we concluded the juvenile court applied an incorrect standard in finding father’s sons were at substantial risk of being molested by father solely because father molested an unrelated nine-year-old girl. (Welf. & Inst. Code, § 300, subds. (d) & (j).) (In re A.A. (2013) B240896, review granted, opinion vacated and cause remanded (S209511) (A.A. I).) Accordingly, we reversed the jurisdictional and dispositional orders and remanded the cause for a new trial if the Department of Children and Family Services wished to proceed with the matter. Our Supreme Court granted review of the decision and held the case pending its decision in In re I.J. (S204622), which raised a similar issue. Subsequently the court issued its opinion in In re I.J. (2013) 56 Cal.4th 766 holding that: “[A] father’s prolonged and egregious sexual abuse of his own child may provide substantial evidence to support a finding that all his children are juvenile court dependents.” (Id. at p. 770.) The court remanded A.A. I to us with directions to “vacate [our] decision and to reconsider the cause in light of In re I.J.” Having done so, we issue this revised opinion in which we reaffirm our reversal of the juvenile court’s orders.
FACTS AND PROCEEDINGS BELOW
When the petition was filed in this case the family consisted of father, his wife (mother), his seven-year-old son Alexis, and his three-year-old son Jason. In addition, mother babysat An. R., an unrelated nine-year-old girl. The relationship between the family and An. R. had existed for years, and she considered Alexis and Jason to be like brothers to her. On several occasions father also exercised caretaker duties as An. R.’s babysitter, and he treated her like his own daughter.
The trial court found jurisdiction over the boys under section 300, subdivisions (b) and (d) based on evidence that on October 27, 2011 and prior occasions going back approximately one year father sexually abused An. R. by rubbing his erect penis against her buttocks, simulating intercourse, grabbing her buttocks, rubbing his penis against her vagina, and holding her in his lap against his penis. Specifically, An. R. testified that on October 27, 2011, while she lay on her stomach on a bed in the living room, father “put his... private part [on her] bottom” and “pressured it... a bit down and... it was moving, like, back and forth.” The contact ended when she moved to her side. An. R. also testified that father rubbed her back and grabbed her buttocks. And approximately one year earlier, father “was acting like he was playing” but was actually “holding [her] down, ” and he rubbed his erect penis against her bottom while holding her shoulders. In all, An. R. believed these incidents occurred about “five or ten times.” The incidents took place in the family home, some occurring when the boys were present (although they were apparently unaware of the abuse).
The court found jurisdiction over Alexis and Jason under section 300, subdivisions (b) and (d), based solely on its view that “the length and terms of the conduct” by father “clearly puts his own children at risk.”
The justification the court gave for removing Alexis and Jason from their father’s custody and making them dependents of the court was that father’s molestation of An. R. constituted sufficient evidence to conclude the boys were at substantial risk of being sexually abused. We disagree.
In our prior opinion we disregarded the fact that father and An. R. were unrelated because substantial evidence indicated mother and father babysat An. R. for years, the child thought of father’s children as her siblings, and father treated her like she was his daughter. And we agreed with the juvenile court that father’s sexual abuse of a young girl over whom he sometimes exercised custodial duties was abhorrent. But we held the abuse did not constitute sufficient evidence to conclude father’s male children were also at risk of sexual abuse.
In re I.J. involved a similar situation. In that case, the father had repeatedly sexually abused his teenage daughter over the course of three years. (In re I.J., supra, 56 Cal.4th at p. 771.) The abuse included fondling, digital penetration of the child’s vagina, oral copulation of the child’s vagina, forcing the child to watch pornographic videos with the father, and forcible rape. (Ibid.) The court agreed with the appellate court’s characterization of father’s behavior as “‘aberrant in the extreme.’” (Id. at p. 778.) The court noted “section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction.” (Id. at p. 773.) Instead, there need only be a “‘substantial risk’” of abuse or ...