Supreme Court of California Justia
Citation 56 Cal. 4th 766

In re I.J.


Filed 5/9/13

IN THE SUPREME COURT OF CALIFORNIA

In re I.J. et al., Persons Coming
Under the Juvenile Court Law.
___________________________________ )

LOS ANGELES COUNTY
S204622
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Ct.App. 2/8 B237271
Plaintiff and Respondent,
Los Angeles County
v.
Super. Ct. No. CK 59248
J.J.,
Defendant and Appellant.
____________________________________)

The Court of Appeal upheld a juvenile court‟s finding that a father sexually
abused his daughter over a three-year period. It further held that this finding
supports the determination that the daughter and her younger sister are dependents
of the court under Welfare and Institutions Code section 300. Those questions are
not before us. Rather, we must decide whether a father‟s sexual abuse of his
daughter supports a determination that his sons are juvenile court dependents
when there is no evidence the father sexually abused or otherwise mistreated the
boys, and they were unaware of their sister‟s abuse before this proceeding began.
We conclude 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.



I. FACTS AND PROCEDURAL HISTORY
We take these facts largely from the majority opinion in the Court of Appeal.
J.J. (father) is the father of two daughters and three sons. On August 8, 2011,
the Los Angeles County Department of Children and Family Services
(Department) filed a petition alleging that all five children — daughters who were
then 14 and nine years old, twin 12-year-old boys, and a boy who would soon turn
eight years old — were dependents of the juvenile court under Welfare and
Institutions Code section 300.1 The petition alleged that father had sexually
abused I.J., the older daughter, and that the abuse also placed the younger siblings
at risk of harm. Regarding the younger siblings, the petition cited section 300,
subdivisions (b) (failure to protect), (d) (sexual abuse), and (j) (abuse of sibling).
Father denied the allegations of sexual abuse.
The juvenile court sustained allegations that on August 2, 2011, “and on prior
occasions for the past three years,” father sexually abused I.J. “by fondling the
child‟s vagina and digitally penetrating the child‟s vagina and forcefully raped the
child by placing the father‟s penis in the child‟s vagina. On prior occasions, the
father forced the child to expose the child‟s vagina to the father and the father
orally copulated the child‟s vagina. On a prior occasion, the father forced the
child to watch pornographic videos with the father. [I.J.] is afraid of the father due
to the father‟s sexual abuse of [I.J.]. The sexual abuse of [I.J.] by the father
endangers [I.J.‟s] physical health and safety and places the child and the child‟s
siblings . . . at risk of physical harm, damage, danger, sexual abuse and failure to
protect.”

1
Unless otherwise indicated, all further statutory references are to the
Welfare and Institutions Code.
2



There is no evidence or claim that father sexually abused or otherwise
mistreated his three sons, and the evidence indicates that they had not witnessed
any of the sexual abuse and were unaware of it before this proceeding began. The
boys said they felt safe in the home and liked living with their parents.
After sustaining the factual allegations, the juvenile court declared all the
children dependents of the court. It found, “by clear and convincing evidence, . . .
that there is a substantial danger to the children, if returned to the home, to the
physical health, safety, protection, physical, emotional well-being of the children,
and there are no reasonable means by which the children‟s physical health can be
protected without removing the children from the father‟s custody in this case.” It
removed the children from father‟s custody, and ordered them placed with their
mother under the Department‟s supervision. The court ordered visits for father
monitored by someone other than the mother, and ordered father to attend a
“program of sex abuse counseling for perpetrators” and to undergo family
counseling.
Father appealed. The Court of Appeal unanimously held that the evidence
was sufficient to support the juvenile court‟s finding that father had sexually
abused I.J., and that the abuse supported the court‟s declaring I.J. and her sister to
be dependants of the court. It divided on the question of whether the abuse also
warranted the court‟s further declaring her brothers to be dependents of the court.
The majority, in an opinion by Justice Grimes, joined by Presiding Justice
Bigelow, upheld the jurisdictional finding. Justice Flier dissented, arguing that
father‟s sexual abuse of his daughter, without more, did not warrant the court‟s
assuming jurisdiction over his sons.
We granted father‟s petition for review to decide whether his abuse of his
daughter supported the court‟s declaring his sons to be dependents of the court.
3

II. DISCUSSION
The Court of Appeal unanimously held that the evidence supports the
juvenile court‟s finding that father abused his daughter. That holding is not before
us on review and, accordingly, we accept the Court of Appeal‟s conclusion in this
regard. (See People v. Weiss (1999) 20 Cal.4th 1073, 1076-1077.) Father
contends, however, that evidence that he sexually abused his daughter does not
support the juvenile court‟s finding that his sons are dependents of the court under
section 300.
Section 300 begins: “Any child who comes within any of the following
descriptions is within the jurisdiction of the juvenile court which may adjudge that
person to be a dependent child of the court . . . .” Then follow several
subdivisions describing children who may be adjudged dependents of the court.
The Department alleged that the younger siblings, including the sons, come within
three of these subdivisions: subdivision (b) (“The child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness, as a
result of the failure or inability of his or her parent . . . to adequately supervise or
protect the child . . . .”); subdivision (d) (“The child has been sexually abused, or
there is substantial risk that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code, by his or her parent . . . .”); and subdivision (j) (“The
child‟s sibling has been abused or neglected, as defined in subdivision (a), (b), (d),
(e), or (i), and there is a substantial risk that the child will be abused or neglected,
as defined in those subdivisions.”).
The Department has the burden of proving by a preponderance of the
evidence that the children are dependents of the court under section 300. (§ 355,
subd. (a); see In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.)
The Court of Appeal below correctly stated the applicable standard of
review: “In reviewing a challenge to the sufficiency of the evidence supporting
4

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.‟ (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
„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.
[Citations.] “ „[T]he [appellate] court must review the whole record in the light
most favorable to the judgment below to determine whether it discloses substantial
evidence . . . such that a reasonable trier of fact could find [that the order is
appropriate].‟ ” [Citation.]‟ (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)”
(See also In re Angelia P. (1981) 28 Cal.3d 908, 924.)
No evidence exists that father physically or sexually abused or neglected the
boys themselves. But section 300 does not require that a child actually be abused
or neglected before the juvenile court can assume jurisdiction. The subdivisions at
issue here require only a “substantial risk” that the child will be abused or
neglected. The 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 R.V. (2012) 208 Cal.App.4th 837, 843.)
“When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court‟s jurisdiction, a reviewing court can
affirm the juvenile court‟s finding of jurisdiction over the minor if any one of the
5

statutory bases for jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case, the reviewing court need not consider
whether any or all of the other alleged statutory grounds for jurisdiction are
supported by the evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Subdivision (j) of section 300 is the one that most closely describes the situation
regarding the boys. Accordingly, we will focus on that subdivision.
Subdivision (j) applies if (1) the child‟s sibling has been abused or neglected
as defined in specified other subdivisions and (2) there is a substantial risk that the
child will be abused or neglected as defined in those subdivisions. (§ 300, subd.
(j).) Here, father sexually abused the boys‟ sister as defined in subdivision (d). So
the first requirement is met. At issue is the second requirement. “[S]ubdivision (j)
was intended to expand the grounds for the exercise of jurisdiction as to children
whose sibling has been abused or neglected as defined in section 300, subdivision
(a), (b), (d), (e), or (i). Subdivision (j) does not state that its application is limited
to the risk that the child will be abused or neglected as defined in the same
subdivision that describes the abuse or neglect of the sibling. Rather, subdivision
(j) directs the trial court to consider whether there is a substantial risk that the
child will be harmed under subdivision (a), (b), (d), (e) or (i) of section 300,
notwithstanding which of those subdivisions describes the child‟s sibling.” (In re
Maria R. (2010) 185 Cal.App.4th 48, 64 (Maria R.).)
Unlike the other subdivisions, subdivision (j) includes a list of factors for the
court to consider: “The court shall consider the circumstances surrounding the
abuse or neglect of the sibling, the age and gender of each child, the nature of the
abuse or neglect of the sibling, the mental condition of the parent or guardian, and
any other factors the court considers probative in determining whether there is a
substantial risk to the child.” (§ 300, subd. (j).) “The „nature of the abuse or
neglect of the sibling‟ is only one of many factors that the court is to consider in
6

assessing whether the child is at risk of abuse or neglect in the family home.
Subdivision (j) thus allows the court to take into consideration factors that might
not be determinative if the court were adjudicating a petition filed directly under
one of those subdivisions. [¶] The broad language of subdivision (j) clearly
indicates that the trial court is to consider the totality of the circumstances of the
child and his or her sibling in determining whether the child is at substantial risk
of harm, within the meaning of any of the subdivisions enumerated in subdivision
(j). The provision thus accords the trial court greater latitude to exercise
jurisdiction as to a child whose sibling has been found to have been abused than
the court would have in the absence of that circumstance.” (Maria R., supra, 185
Cal.App.4th at p. 64.)
Several Court of Appeal cases have considered, in varying factual contexts,
whether sexual abuse of a daughter supports finding a son to be a dependent of the
court, with sharply conflicting results. (Compare In re R.V., supra, 208
Cal.App.4th at pp. 842-848 [upholding finding the son was a court dependent
when the son had witnessed some of the sexual abuse], In re Ana C. (2012) 204
Cal.App.4th 1317, 1330-1332 [upholding, over a dissent, finding the son was a
court dependent], In re Andy G. (2010) 183 Cal.App.4th 1405, 1410-1415
[upholding finding the son was a court dependent when the father exposed himself
to a daughter while the son was in the same room], In re P.A. (2006) 144
Cal.App.4th 1339, 1345-1347 [upholding finding the son was a court dependent],
In re Karen R. (2001) 95 Cal.App.4th 84, 89-91 [upholding finding the sons were
court dependents when the sons had observed some forms of physical abuse and
heard their sister report a rape to their mother], and In re Jason L. (1990) 222
Cal.App.3d 1206, 1213-1218 [upholding finding the son was a court dependent
when there was also evidence the father had engaged in at least one homosexual
relationship, shared a bedroom with the son, and showered with him at least twice]
7

with In re Alexis S. (2012) 205 Cal.App.4th 48, 53-56 [overturning finding the son
was a court dependent], Maria R., supra, 185 Cal.App.4th at pp. 62-70
[overturning finding the sons were court dependents], and In re Rubisela E. (2000)
85 Cal.App.4th 177, 197-199 [overturning finding the sons were court
dependents]; see also In re Jordan R. (2012) 205 Cal.App.4th 111, 137-139
[upholding the juvenile court‟s refusal to find the son was a court dependent].)
Some of these cases are distinguishable from this one and each other, in that
some of the cases upholding the jurisdictional finding contained additional
evidence that is lacking here. But to some extent, the cases simply disagree with
each other. The majority below agreed with the cases finding the evidence
sufficient, while the dissent agreed with the cases finding the evidence
insufficient.
Two typical cases upholding the jurisdictional finding are In re P.A., supra,
144 Cal.App.4th 1339, and In re Karen R., supra, 95 Cal.App.4th 84. The Karen
R. court said that “a father who has committed two incidents of forcible incestuous
rape of his minor daughter reasonably can be said to be so sexually aberrant that
both male and female siblings of the victim are at substantial risk of sexual
abuse . . . . Although the danger of sexual abuse of a female sibling in such a
situation may be greater than the danger of sexual abuse of a male sibling, the
danger of sexual abuse to the male sibling is nonetheless still substantial. Given
the facts of this case, the juvenile court reasonably could conclude every minor in
the home, regardless of gender, was in substantial danger of sexual abuse by
father.” (In re Karen R., supra, at pp. 90-91.)
In P.A., the juvenile court sustained an allegation that the father had
sexually abused his daughter by touching her vagina under her clothes and on top
of her underwear. (In re P.A., supra, 144 Cal.App.4th at pp. 1341, 1343.) There
was no evidence the father had inappropriately touched or otherwise sexually
8

abused his sons, and it appeared the boys were unaware of the abuse. (Id. at p.
1345.) Nevertheless, relying in part on In re Karen R., supra, 95 Cal.App.4th 84,
the court upheld the jurisdictional finding as to the sons. It acknowledged that the
abuse in its case was “less shocking than the abuse in Karen R.,” but it was
“convinced that where, as here, a child has been sexually abused, any younger
sibling who is approaching the age at which the child was abused, may be found to
be at risk of sexual abuse. As we intimated in Karen R., aberrant sexual behavior
by a parent places the victim‟s siblings who remain in the home at risk of aberrant
sexual behavior.” (In re P.A., supra, at p. 1347.)
The P.A. court found its conclusion “consistent with section 355.1,
subdivision (d), which provides in pertinent part that: „(d) Where the court finds
that either a parent, a guardian, or any other person who resides with . . . a minor
who is currently the subject of the petition filed under Section 300 . . . (3) has been
found in a prior dependency hearing . . . to have committed an act of sexual
abuse, . . . that finding shall be prima facie evidence in any proceeding that the
subject minor is a person described by subdivision (a), (b), (c), or (d) of Section
300 and is at substantial risk of abuse or neglect. The prima facie evidence
constitutes a presumption affecting the burden of producing evidence.‟ [¶]
Although section 355.1, subdivision (d), was not triggered here because there was
no prior dependency proceeding at the time of the jurisdictional hearing, it
nonetheless evinces a legislative determination that siblings of sexually abused
children are at substantial risk of harm and are entitled to protection by the
juvenile courts.” (In re P.A., supra, 144 Cal.App.4th at p. 1347.)
A relatively early case overturning the jurisdictional finding is In re
Rubisela E., supra, 85 Cal.App.4th 177. The Rubisela E. court did “not discount
the real possibility 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
9

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. 198.) But, the court found, “in the case at bench, while such a
showing is possible, there has been no demonstration by the department that „there
is a substantial risk [to the brothers] that [they] will be abused or neglected, as
defined in . . . [the applicable] subdivisions . . . .” (Id. at p. 199.)
Relying partly on In re Rubisela E., supra, 85 Cal.App.4th 177, the Maria
R. court “disagree[d] with prior cases to the extent that they have held, either
explicitly or implicitly, that a parent‟s sexual abuse of a daughter, either alone or
in combination with a factor or factors that have no established correlation with
sexual abuse, is sufficient to establish that the parent‟s son is at risk of sexual
abuse by that parent . . . .” (Maria R., supra, 185 Cal.App.4th at p. 63.) It agreed
with Rubisela E. “that the brothers of molested girls may be harmed by the fact of
molestation occurring in the family,” but it did not “agree with prior cases to the
extent that they have held or implied that the risk that the brothers face may — in
the absence of evidence demonstrating that the perpetrator of the abuse may have
an interest in sexually abusing male children — be deemed to be one of „sexual
abuse‟ within the meaning of subdivision (d). . . . [T]he phrase „sexual abuse‟ for
purposes of section 300 is defined by reference to the offenses enumerated in
Penal Code section 11165.1, whether the allegation of sexual abuse is filed under
subdivision (d) or (j). [Citation.] Penal Code section 11165.1 refers to specific
sex acts committed by the perpetrator on a victim . . . and does not include in its
enumerated offenses the collateral damage on a child that might result from the
family‟s or child‟s reaction to a sexual assault on the child‟s sibling.” (Maria R.,
supra, at pp. 67-68.)
10

The Maria R. court noted that “[n]one of the courts that have held or
impliedly concluded that a child, regardless of gender, whose sibling was sexually
abused, may be found to be at risk of sexual abuse under subdivision (d), either
directly or under subdivision (j) [of section 300], has cited any scientific authority
or empirical evidence to support the conclusion that a person who sexually abuses
a female child is likely to sexually abuse a male child. [Citing In re P.A., supra,
144 Cal.App.4th 1339, and In re Andy G., supra, 183 Cal.App.4th 1405.] In the
absence of evidence demonstrating that a perpetrator of sexual abuse of a female
child is in fact likely to sexually abuse a male child, we are not persuaded that the
rule of general applicability enunciated in P.A., and repeated by the Andy G. court,
is grounded in fact. For this reason, we decline to adopt the reasoning of P.A. and
Andy G.” (Maria R., supra, 185 Cal.App.4th at p. 68.) The court concluded that
“[s]ince there is no evidence in the record that would tend to support a finding that
[the father] has an interest in engaging in sexual activity with a male child, we
cannot . . . conclude that [the father‟s] sexual abuse of his daughters — as aberrant
as it is — establishes that [the son] is at substantial risk of sexual abuse within the
meaning of subdivision (j), as defined in subdivision (d) and Penal Code section
11165.1.” (Ibid.)2
We agree with the majority below that the evidence in this case was
sufficient to support the juvenile court‟s dependency finding. Among the factors
cited in subdivision (j) for the court to consider are the circumstances surrounding,
and the nature of, father‟s sexual abuse of his daughter. By citing these factors,

2
However, the Maria R. court remanded the matter to the juvenile court for
further proceedings to determine whether the son might be a dependent child
under section 355.1, subdivision (d)(3). (Maria R., supra, 185 Cal.App.4th at pp.
69-72.) In light of our resolution of this case, we need not, and do not, consider
whether the Maria R. court erred in this respect.
11



subdivision (j) implies that the more egregious the abuse, the more appropriate for
the juvenile court to assume jurisdiction over the siblings. (§ 300, subd. (j).)
“Some risks may be substantial even if they carry a low degree of probability
because the magnitude of the harm is potentially great. . . . Conversely, a
relatively high probability that a very minor harm will occur probably does not
involve a „substantial‟ risk. Thus, in order to determine whether a risk is
substantial, the court must consider both the likelihood that harm will occur and
the magnitude of potential harm . . . .” (People v. Hall (Colo. 2000) 999 P.2d 207,
217-218 [considering what constitutes a “substantial and unjustifiable risk” of
death].) In other words, the more severe the type of sibling abuse, the lower the
required probability of the child‟s 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.
The majority below accurately described father‟s behavior as “aberrant in
the extreme: he sexually abused his own daughter „by fondling the child‟s vagina
and digitally penetrating the child‟s vagina and forcefully raped the child by
placing the father‟s penis in the child‟s vagina.‟ ” Also relevant to the totality of
the circumstances surrounding the sibling abuse is the violation of trust shown by
sexually abusing one child while the other children were living in the same home
and could easily have learned of or even interrupted the abuse. “[S]exual or other
serious physical abuse of a child by an adult constitutes a fundamental betrayal of
the appropriate relationship between the generations. . . . 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. (See
12

§ 300, subds. (d), (e), (j).)” (In re Kieshia E. (1993) 6 Cal.4th 68, 76-77.) The
serious and prolonged nature of father‟s sexual abuse of his daughter under these
circumstances supports the juvenile court‟s finding that the risk of abuse was
substantial as to all the children.
The Maria R. court criticized cases like In re P.A., supra, 144 Cal.App.4th
1339, for not citing scientific authority or empirical evidence to support the
conclusion that a father who abuses his daughter is likely to abuse his son. (Maria
R., supra, 185 Cal.App.4th at p. 68.) But nothing in the statutes suggests a
legislative intent to require a court to consult scientific authority or empirical
evidence before it makes the “substantial risk” determination. The specific factors
the Legislature stated in section 300, subdivision (j) do not include such evidence.
Rather, after considering the nature and severity of the abuse and the other
specified factors, the juvenile court is supposed to use its best judgment to
determine whether or not the particular substantial risk exists. As the majority
below noted, “It is of course impossible to say what any particular sexual
predator — and here a predator who has raped his own daughter — is likely to do
in the future in any particular instance. But in our view that very uncertainty
makes it virtually incumbent upon the juvenile court to take jurisdiction over the
siblings . . . .”
Another statute that does not directly apply here supports the conclusion
that a court need not consult scientific authority before it finds the requisite
substantial risk when a parent has sexually abused a sibling. Section 355.1,
subdivision (d), provides that a prior finding of sexual abuse (of anyone, not just a
sibling) is prima facie evidence that the child who is the subject of the dependency
hearing is subject to the court‟s jurisdiction under section 300. When it enacted
subdivision (d) of section 355.1, the Legislature found “that children of the State
of California are placed at risk when permitted contact with a parent or caretaker
13

who has committed a sex crime. Further, the Legislature finds that children
subject to juvenile court dependency jurisdiction based on allegations of
molestation are in need of protection from those persons.” (Stats. 1999, ch. 417,
§ 1, p. 2780.) Nothing in this subdivision suggests it is limited to sexual abuse of
a person of the same gender as the child before the court.
Father correctly argues that section 355.1 does not apply here because there
was no finding in a prior proceeding that he committed sexual abuse. But neither
the P.A. court, nor the Court of Appeal here, nor the Department contends it does
apply. Rather, section 355.1 is relevant because it evinces a legislative intent that
sexual abuse of someone else, without more, at least supports a dependency
finding. (See In re P.A., supra, 144 Cal.App.4th at p. 1347.)
Citing empirical studies, father argues that when a father sexually abuses a
daughter, his sons are at significantly lower risk of sexual abuse than are his other
daughters. Amicus curiae California State Association of Counties challenges
father‟s statistics and argues that empirical studies show the risk to boys when a
sister is abused is greater than father argues. We need not examine these studies in
detail. For present purposes, we may assume that father‟s other daughter is at
greater risk of sexual abuse than are his sons. But this does not mean the risk to
the sons is nonexistent or so insubstantial that the juvenile court may not take steps
to protect the sons from that risk. “Although the danger of sexual abuse of a
female sibling in such a situation may be greater than the danger of sexual abuse
of a male sibling, the danger of sexual abuse to the male sibling is nonetheless still
substantial.” (In re Karen R., supra, 95 Cal.App.4th at p. 91.) The juvenile court
need not compare relative risks to assume jurisdiction over all the children of a
sexual abuser, especially when the abuse was as severe and prolonged as here.
The juvenile court‟s assumption of jurisdiction under section 300 does not
itself mean father will lose all parental rights. “A dependency adjudication is a
14

preliminary step that allows the juvenile court, within specified limits, to assert
supervision over the endangered child‟s care. But it is merely a first step, and the
system includes many subsequent safeguards to ensure that parental rights and
authority will be restricted only to the extent necessary for the child‟s safety and
welfare.” (In re Ethan C. (2012) 54 Cal.4th 610, 617.) All we are holding at this
point is that when a father severely sexually abuses his own child, the court may
assume jurisdiction over, and take steps to protect, the child‟s siblings.
We agree with the Court of Appeal‟s conclusion. “The juvenile court is
mandated to focus on „ensur[ing] the safety, protection, and physical and
emotional well-being of children who are at risk‟ of physical, sexual or emotional
abuse. (§ 300.2.) That is what the court did here.” As we noted earlier, the
juvenile court found, “by clear and convincing evidence, . . . that there is a
substantial danger to the children, if returned to the home, to the physical health,
safety, protection, physical, emotional well-being of the children, and there are no
reasonable means by which the children‟s physical health can be protected without
removing the children from the father‟s custody in this case.” In upholding the
assertion of jurisdiction in this case, we are not holding that the juvenile court is
compelled, as a matter of law, to assume jurisdiction over all the children
whenever one child is sexually abused. We merely hold the evidence in this case
supports the juvenile court‟s assertion of jurisdiction. (Cf. In re Jordan R., supra,
205 Cal.App.4th 111 [upholding the juvenile court‟s refusal to assert
jurisdiction].)
15

III. CONCLUSION
We affirm the judgment of the Court of Appeal and disapprove, to the
extent they are inconsistent with this opinion, In re Alexis S., supra, 205
Cal.App.4th 48, In re Maria R., supra, 185 Cal.App.4th 48, and In re Rubisela E.,
supra, 85 Cal.App.4th 177.
CHIN, J.
WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.
16



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re I.J.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 207 Cal.App.4th 1351
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S204622
Date Filed: May 9, 2013
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Timothy R. Saito

__________________________________________________________________________________

Counsel:

Cristina Gabrielidis, under appointment by the Supreme Court, and Jack A. Love, under appointment by the
Court of Appeal, for Defendant and Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Emery El Habiby,
Deputy County Counsel, for Plaintiff and Respondent.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Plaintiff
and Respondent.




Counsel who argued in Supreme Court (not intended for publication with opinion):

Cristina Gabrielidis
6977 Navajo Road, Suite 303
San Diego, CA 92119
(619) 733-1328

Emery El Habiby
Deputy County Counsel
201 Centre Plaza Drive, Suite 1
Monterey Park, CA 91754-2142
(323) 526-6228


Petition for review after the Court of Appeal affirmed an order in a juvenile dependency proceeding. This case presents the following issue: Was the evidence that a 14-year-old girl had been sexually abused by her father sufficient in itself to support a juvenile court's jurisdictional findings under Welfare and Institutions Code, section 300, subdivisions (b), (d) or (j), that her younger male siblings were at substantial risk of future sexual abuse or other risk of harm?

Opinion Information
Date:Citation:Docket Number:
Thu, 05/09/201356 Cal. 4th 766S204622

Parties
1J.J. (Father) (Petitioner)
Represented by Cristina Gabrielidis
Lechman and Lechman
6977 Navajo Road, Suite 303
San Diego, California 92119

2Los Angeles County Department of Children and Family Services (Respondent)
Office of the County Counsel
201 Centre Plaza Drive, Suite 1
Monterey Park, CA

Represented by Emery Fayk El Habiby
Office of the County Counsel
3California State Association of Counties (Amicus Curiae)
Represented by Jennifer Bacon Henning
California State Association of Counties
California State Association of Counties
1100 "K" Street, Suite 101
Sacramento, CA


Opinion Authors
OpinionJustice Ming W. Chin

Brief Downloads
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RESPONDENT ANSWER BRIEF.pdf (1458900 bytes) - Respondent Answer Brief
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REPLY BRIEF -.pdf (637439 bytes) - Petitioner Reply Brief
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Jun 4, 2013
Annotated by Ryan Nelson

Facts:

The defendant in this case was the father of five: two daughters (aged fourteen and nine) and three sons (twin twelve year olds and a seven year old). In the summer of 2011, the Los Angeles County Department of Children and Family Services filed a petition to have all five children removed from the father’s custody and placed in the care of the juvenile court due to alleged abuse under California Welfare and Institutions Code section 300.

In three relevant subsections, this state statue holds that children may be judged a dependent of the court if:

1. Subsection (b): The child suffered or is at substantial risk of suffering serious physical harm or illness as the result of the parent’s failure to protect the child.
2. Subsection (d): The child was sexually abused or there is a substantial risk that the child will be sexually abused by a member of the household.
3. Subsection (j): The child’s sibling has been abused or neglected in the ways described above. Before considering a child a dependent of the court under this subsection, courts examine the nature of the abuse or neglect, the mental condition of the parent, the age and gender of the sibling, and other factors the court deems important.

In this case, the father had sexually abused his eldest daughter on many occasions by fondling and raping her. The three sons were never sexually abused, unaware their sister was being abused, and felt safe living with their parents.

Procedural History:

The juvenile court determined that the father had sexually abused his daughter and ordered the children be removed from the his care. The court placed the children with their mother under the Children and Family Service Department’s supervision.

The father appealed the juvenile court’s decision.

The court of appeal unanimously agreed that there was enough evidence to prove the father had sexually abused his eldest daughter and that the abuse was sufficient to warrant removing both daughters from the household.

The judges on the court of appeal, however, disagreed whether sexual abuse of the daughter warranted the removal of the sons from the father’s household.

Issue:

Does sexual abuse of a daughter support deeming sons dependents of the court, even if there is no evidence that the defendant has sexually abused boys and the boys are unaware the abuse is taking place?

Holding:

1. When a father sexually abuses a daughter, empirical evidence of sexual abuse of his sons is not required to deem boys dependents of the court.
2. A father’s prolonged and egregious sexual abuse of a child may provide substantial evidence to support a finding that all his children should be deemed dependents of the court.

Analysis:

Unanimous (Chin, J.):

The California Supreme Court begins by outlining the sections of California Welfare and Institutions Code section 300 described above. The court notes that in each of these sections actual abuse is not required to remove a child. Only the “substantial risk” that the child will be abused must be proven in order to take custody from a parent. Since finding that the sons fall under any one of these three subsections will warrant their removal from the home, the court focuses its discussion on subsection (j) (number 3 above) because this section seems the most applicable.

In starting its analysis, the court recognizes that subsection (j) includes a list of factors to contemplate. Importantly, the court explains that this subsection instructs judges to use a totality of the circumstances test which allows the court to consider all the factors together.

A “totality of the circumstances” analysis is a common type of legal test that is often used in cases that are likely to rest heavily on the facts of each individual case. This type of test allows courts to look at all the facts together and make a ruling based on the big picture. This is important in this case because the court is able to piece together different facts that, by themselves, would not determine the outcome of the case, but when taken together could push the court to rule one way or the other.

After discussing the statutes governing this case, the court moves to an examination of past cases dealing with similar issues. The court notes that on the whole, past cases have been inconsistent with some ruling that sons can be removed while others holding that they cannot. Two pairs of cases drew the court’s attention.

In the first two cases, In re P.A., 144 Cal. App. 4th 1339, 1345-47 (2006); In re Karen R. 95 Cal. App. 4th 84, 89-91 (2002), California appellate courts found that the abuse of a daughter put sons at a substantial risk, even if there was no evidence the sons had been abused. The courts in these cases removed the sons from their parents’ care.

The second pair of cases, In re Maria R., 185 Cal. App. 4th 48, 62-70 (2010); In re Rubisela E., 85 Cal. App. 4th 177, 197-99 (2000), found that abuse of a daughter on its own does not provide sufficient evidence to remove sons from a household. In these cases, the appellate courts held that abuse of a daughter may imply that sons are at risk, but without an empirical showing that the boys are actually at risk, the courts refused to remove the sons.

After taking stock of these cases, the California Supreme Court holds that in this particular case the appellate court below was justified in deeming the sons dependents of the court. The court reaches this conclusion based on three principle rationales:

1. Since the father’s abuse was extreme (fondling and rape), occurred over a prolonged period of time, and breached the trust of all his children, the court believed that the magnitude of the potential harm to the sons was great. The court found that even discounting this potential harm by the fact that there was no evidence that it would occur, the harm would be so great if it were to occur that the sons could be deemed dependents of the court.
2. The language of subsection (j) does not require finding empirical evidence and each factor laid out in subsection (j) is to be determined by the court’s best judgment.
3. The legislature that wrote the laws did not intend courts to need empirical evidence to deem children dependents of the court. The court arrives at this conclusion by referencing another statute that did not directly apply in this case: California Welfare and Institutions Code Section 355.1(d). This statute allows courts to deem children dependents of the court if a parent has been previously convicted of a sex crime. In passing this law, the legislature stated that children who come into contact with someone who has committed a sex crime are at risk of harm even if there is no evidence the children have been abused. Taking this statement by the legislature, the court in this case decided that living in a household with a parent that has sexually abused a daughter supports deeming the child a dependent of the court without any further empirical evidence.

After explaining its rationale, the court summarizes its determination. Critically, the court makes clear that sexual abuse of one child does not require that the court deem all siblings dependents of the court. Rather, the court may take this abuse as evidence in determining if a sibling should be placed in the care of the court without any empirical findings that the sibling was actually abused. In this particular case the California Supreme Court found the evidence sufficient to deem the defendant’s sons dependents of the court.

Tags: Family Law, Juvenile Law, Sex Abuse, Sexual Abuse, Evidence of Abuse, Evidence of Sexual Abuse, Abuse of a Sibling, Sexual Abuse of a Sibling, Dependents of Juvenile Court, Wards of Juvenile Court, Dependents of the Court, Juvenile Dependency, Dependent Children, Custody, Sibling, Children, Welfare and Institutions Code, Parental Fitness, Guardian, Rights Termination, Best Interests of the Child, Infants, Shelter Care, Evidence, Empirical Evidence