IN RE I.J.Respondent’s Answer Brief on the MeritsCal.December 26, 2012$204622 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In the Matter of I.J., et al., Persons Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, V. JJ, Defendant and Appellant. Case No. 8204622 Court of Appeal, 2d District Case No. B237271 Los Angeles County Superior Court Case No. CK59248 SUPREME COURT FILED ANSWERBRIEF ON THE MERITS DEC 2 6 2012 From a Decision of the Court ofAppeal Frank A. McGuire Clerk Second Appellate District, Division Eight “Beout On Appeal from the Judgment of the Superior Court for the _ County of Los Angeles, Juvenile Division The Honorable Timothy R.Saito, Judge Presiding OFFICE OF THE COUNTY COUNSEL JOHN F. KRATTLI County Counsel JAMES M. OWENS Assistant County Counsel EMERY EL HABIBY Deputy County Counsel State Bar No. 219781 201 Centre Plaza Drive, Suite 1 Monterey Park, California 91754-2142 Telephone: (323) 526-6228 Facsimile: (323) 881-6594 Attorneys for Plaintiff and Appellant, Los Angeles County Department of Children and Family Services CHS.452554.1 $204622 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In the Matterof L.J., et al., Persons Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, V. JJ., Defendant and Appellant. Case No. 8204622 Court of Appeal, 2d District Case No. B237271 Los Angeles County Superior Court Case No. CK59248 ANSWER BRIEF ON THE MERITS From a Decision of the Court of Appeal Second Appellate District, Division Eight On Appealfrom the Judgmentofthe Superior Court for the County of Los Angeles, Juvenile Division The Honorable Timothy R.Saito, Judge Presiding OFFICE OF THE COUNTY COUNSEL JOHN F. KRATTLI County Counsel JAMES M. OWENS Assistant County Counsel EMERY EL HABIBY Deputy County Counsel State Bar No. 219781 201 Centre Plaza Drive, Suite 1 Monterey Park, California 91754-2142 Telephone: (323) 526-6228 Facsimile: (323) 881-6594 Attorneys for Plaintiff and Appellant, Los Angeles County Department of Children and Family Services CHS.452554.1 TABLE OF CONTENTS Page INTRODUCTIONoo. .cccccccccsesssessesescesesscscsscsesssusucasssasausssasasssesesaseveeverecesees I COMBINED STATEMENTOF THE CASE AND FACTSvececccccccccccceceesee. 3 I. PROCEEDINGSIN THE JUVENILE COURT....ccccscsccccccesecsesececeses 3 Il. PROCEEDINGSIN THE COURT OF APPEAL.veececccscsesesesseseccocsess 7 A. Majority Opinion.2.0.0... cesesesssscessssssessscssstecscsesessessesesessvesese 7 B. Dissenting Opinion... cecesecssssssssescsescsssescsesestsssscsssreresseeees 9 Til. ACTIONS IN THE SUPREME COURT)..ccccccccsccccsesssssssesecsecesescees. 10 ARGUMENT... cccceccsssssessssssessesssssssssessussssrssusesarstsatatarsatersssasssteusacsneesesceses 11 I. THE FATHER'S REPEATED RAPE OF HIS BIOLOGICAL DAUGHTER, DURING TIMES WHEN THE SIBLINGS WERE ALSO IN THE HOME, WAS SUFFICIENT EVIDENCE TO ASSERT DEPENDENCY JURISDICTION OVER THESIBLINGS. .....c.ccccsccssscssssscsscesesscsesesessesssssscasesevesseceesece. 12 A. The Juvenile Court Correctly Assumed Jurisdiction over I.J.'s Male Siblings under Section 300, Subdivision (d). ...cccccesssscescssssssssssesessssesearscessssssaessercesseseces 13 l. Thestatute's plain language... ccccscsesescsccsssscseee 14 2. Both dependencyandcriminalstatutes protect boys from sexual predators who have abused BAIS.eeeces cscceseeeceseesessssssescssssscacsessssssvesecsceveasenees 18 3. Case law supports a finding ofjurisdiction under section 300, subdivision (d). .....cccccccccccssssseseseee 21 B. The Evidence Supports a Finding of Dependency Jurisdiction over the Male Siblings Under Section 300, Subdivision (b). ......cccssssscsesssessescesteesssestssscsceasessssssavereececeec. 27 C, The Juvenile Court Correctly Utilized Section 300, Subdivision (j), to Assume Jurisdiction over L.J.'s Male SUD]INS. oeseeccececesteseeseesssssscscsssvsussesssessseesasescsvessseseeeseeses 29 CHS.452554.1 i CONCLUSION|... cece cescessseceeeseseseetessessesevesasssesussssereseeseesueesessatevavesaracans 32 CERTIFICATE OF WORD COUNT PURSUANTTO RULE8.360........ 34 CHS.452554.1 il TABLE OF AUTHORITIES Page CASES In re Alexis S. (2012) 205 Cal.App.4th 48.00... ccccccsesseseseecsesseessesesesenss 8, 26 In re Ana C. (2012) 204 Cal.App.4th 1317 vcecscsccssecseesesssscsscsscesses 24 Inre Andy G. (2010) 183 Cal.App.4th 1405 oocccsccsecssscreeeeeerseeeeess 8, 24 In re Ashley B. (2012) 202 Cal.App.4th 968 .o...cccccccsssecssessestesssesssssscssees 30 In re Dorothy I. (1984) 162 Cal.App.3d 1154...ccecscescseeessscssessssseee 30 In re Edward C. (1981) 126 Cal.App.3d 193 oo... cecccssscesseseeseeseseesesessens 30 In re Gladys R. (1970) 1 Cal.3d 855 ccccccccssssssssssssssssssssssesssssssessssssssessesanen 14 In re Heather A. (1996) 52 Cal.-App.4th 183 oo... cccccssccssscssccssesceslecsseseens 29 Inre LJ, et. al. (2012) 207 Cal.App.4th 1351 o.ccccccecssscssessscssscsscsscessersees 1 In re James C. (2002) 104 Cal.App.4th 470.0... ccsccscsssssssssssssscssesssseceeses 10 In re Jason L. (1990) 222 Cal.App.3d 1206 2... cscssssssseseessesssseseseeneess 28, 29 In re Jeannie O. (1973) 32 Cal.App.3d 288 .....cccscescssscessscsscssssssesscssssersees 30 In re Jonathan B. (1992) 5 Cal.App.4th 873 ......cccccccssesssessscsssseseresssseessseees 13 In re Jordan R. (2012) 205 Cal.App.4th 111.cccecscsccssssecssscesssessesers 26 In re Joshua J. (1995) 39 Cal.App.4th 984 oo... cscscsseseeeesessssssessssvesseees 21 In re Karen R. (2001) 95 CalApp.4th 84 oo... cccccsssscesscssscsessasesseeees 22, 24 In re Kristin H. (1996) 46 Cal.App.4th 1635 wc.ccecsscssssscssescesscesceereeeses 30 In re La Shonda B. (1979) 95 Cal.App.3d 593 oeeeeseesssssetssseessseereeeesees 13 In re Luke M. (2003) 107 CaLApp.4th 1412 occcescsesssscssssssereseeeeees 10 In re Maria R. (2010) 185 Cal.App.4th 48 oo. cceecsesessscssessesssseereeespassim Inre Michael S. (1981) 127 Cal.App.3d 348 wo.cccccesesessssssssseseceereees 29, 30 Inre P.A. (2006) 144 Cal.App.4th 1339 occseeseeeeesessereseeesees 8, 19, 22 Inre R.C. (2012) 210 Cal.App.4th 930 oo. ccccssscssesscssecssssetecsscsssecseeaes 27 In re R.V. (2012) 208 Cal.App.4th 837 .o.ccccccccscsssscescsessesesscscescecssssnssssesees 29 CHS.452554.1 ili In re Rubisela E. (2000) 85 CalApp.4th 177 vccccccccssesesssseseececeseccc., 8, 25 In re Tania S. (1992) 5 CalApp.4th 728 w....ccccscssssssssssssesseeeeeeeeecccccc. 10 In re Taylor (2012) 209 Cal.App.4th 210... ccccccsssssesesscscstsseeeeeeccce. 21 People v. Brandao (2012) 203 Cal.App.4th 436 voces... 14, 16, 21, 26 People v. Kongs (1994) 30 CalApp.4th 1741...sesssestttsssstsee 15 People v. Lambert (1985) 165 CalApp.3d 716... ccccccssssssscssscescececececcn. 28 People v. Phillips (2010) 188 CalApp.4th 1383... ccccsccscsceceecececec., 17 People v. Thompson (1998) 206 Cal.App.3d 459... cccscccsessescsesscssecsesesce, 16 STATUTES Penal Code, section 11165.1...cccccccssssssssssssesssssssssescesseeesececcccc 12, 14, 18, 23 Penal Code, section 290 ..........sssussssssssssssssssesseeeeeeeeeccccc. 18, 20 Penal Code,section 3003.5 .......csssssssssssuussssssssssssssusassstsssisesseseeeeeeccc 21 Penal Code, section 647.6 ........sssssssssssssssssssssssstttsstisstasesseeeescccc..passim OTHER AUTHORITIES Assem. Com.on Judiciary, Analysis of Sen. Bill No. 208 (1999-2000 Reg. Sess.) as amended May 13, 1999ocecssscsssseseecees. 19 Leg. Com. com., West's Ann. Welf. & Inst. Code (2008ed.) foll. §BSSU soessessstsestssstsecccesceecscsesssssseseesestensessssssvtnnssssttoaessettsasae cesses 18 Stats. 1996, ch. 908, § 1, subd. (BD), P. 5105 oecccscsssesesessesssesseeseecccs., 21 Stats. 1999, ch. 417 § 2, eff. Sept. 16, 1999eccicsccssuesssssssesesseccece.., 18 WELFARE AND INSTITUTIONS CODE S€CHHON 300 wo...ecessseecssseseesesssessumtttssssstssisissnsnttssstsssisiieeeeeeeccecpassim Section 300.2 ......esessssssessesssssseessettssssssirnsesstusmsssssiasssetiasteseecccc. 1] SeCtiON 355.1 esssesessssscessseesssssseeessesssnnasssusansssssssssssssssstieeeeeeeeecccccc 18, 19, 23 Section 361 ooccscscseseseee,teeseeeesereeesensessessesaeeeecsssasssessstasestsssasseccecss 28 Section 361.5 .Tettereeeeeneeeeeteeeeteseeeseseessenseesnessssssssessseesatsssaasersatsaassarsesecsce, 20 CHS.452554.1 Iv INTRODUCTION The Los Angeles County Department of Children and Family Services ("DCFS") respectfully requests this Supreme Court affirm the decision of the Second District Court of Appealentitled In re LT., et. al. (2012) 207 Cal.App.4th 1351 ("Opinion").’ The Second Appellate District affirmed, in whole, the assumptionofjuvenile court jurisdiction over the victim child, I.J., her sister, and her three brothers, after finding their father repeatedly raped I.J. for years. Given the abuse constituted an extreme level of depravity, was ongoing, and occurred while the siblings were in the home, the evidence amply supported the assumption of dependency jurisdiction overI.J. and hersiblings, even the male siblings, under Welfare and Institutions Code’ section 300, subdivisions (b), (d), and(j). Subdivision (d) of section 300 defines sexual abuse for the purposes of declaring a child a dependent ofthe juvenile court. The definition is broad and encompassesnotonlyacts of incestuous rape, but also acts of molestation, which do not require a touching. Thestatute seeks to protect the abused child and also childrenat risk of abuse. Given the cavalier nature of the father's ongoing abuse ofI.J., where the siblings could have ’ All citations to the Opinion are to the LexisNexis version, a copy of whichis attached hereto. ? Unless otherwise indicated, all further statutory referencesare to the Welfare and Institutions Code. CHS.452554.1 1 walked-in on the abuseat any time, Father placedthe siblings at risk of sexual abuse becausethe risk of exposure to the incestuous rape oftheir sister constituted sexual abuse as defined by the statute. Moreover,asthe Opinion aptly observes, when the abuseis so aberrantin nature, all children in the homeare at risk even if they were not targeted at the time ofjuvenile court intervention. | Similarly, section 300, subdivision (b), protects children whoare at risk of physical harm becauseoftheir parent's abrogation ofparental responsibilities. Again, given the aberrant conduct at issue here, the evidence supported an assumption ofjurisdiction over the siblings under subdivision (b), because a juvenile court could reasonablyinfer the siblings wereat risk of suffering physical harm at the handsof a father who repeatedly, forcibly raped his biological daughter. Likewise, subdivision(j), jurisdiction was warrantedto protect the siblings. Subdivision (j) permits a court to assume jurisdiction over the siblings of an abused child. That was precisely the scenario presented to the juvenile court. Thus, the Opinion is sound, harmonious with the purpose of dependency law — to protect children — and consistent with other dependencystatutes and the Penal Codeas they relate to sexual abuse and sexual predators. Therefore, the decision of the Second District Court of Appeal should be affirmed. CHS.452554.1 2 COMBINED STATEMENT OF THE CASE AND FACTS The subjects ofthe underlying juvenile dependency matter, which commenced in August 2011, are I.J. (then age 14), her three brothers (12- year-old twins,anda third brother, age eight), and her sister (age nine). (Opinion,p. 6; Clerk's Transcripts ["CT"] 1-6.) Petitioner herein is the children’s father, J.J. ("father"). The children’s mother ("mother") was not a party to the appellate proceedings below,noris she a party to the instant action. | I. PROCEEDINGSIN THE JUVENILE COURT. The Los Angeles County Department of Children and Family Services ("DCFS") initiated dependency proceedings on behalf of IJ. and all her siblings in August 2011, after their mother took the children to a police station suspecting I.J. had been sexually abused by her father. DCFS filed a petition undersection 300, subdivisions (b) (failure to protect), (d) (sexual abuse), and (j) (abuse of a sibling.) (Opinion, p. 6; CT 1-6.) The juvenile court ultimately found, under the pled subdivisions, that for the past three years, the father sexually abused I.J. by fondling and digitally penetrating her vagina, forcefully raping her byinsertinghis penis inside her vagina, and onceforcing the girl to exposeher vagina to the father at which point he orally copulated the child's vagina. The juvenile court also foundthat ona prior occasion,the father forced LJ. to watch pornographic videos with him, that the child wasafraid of her father CHS.452554.1 3 because ofthe abuse he perpetrated against her, and that the abuse not only endangered I.J.'s physical health and safety, but also placedhersiblings "at risk of physical harm, damage, danger, sexual abuse and failure to protect." (Opinion, p. 6; CT 1-6, 184-185.) Indeed, the record overwhelmingly supported the juvenile court’s findings of abuse, and included evidence of an audio recordingofthe father asking I.J. whether she would move in with himifhe left thehome and telling her that she could have boyfriends, but could not have sex with them. The children's mother also discoveredthat the father had been viewing manyincest websites. (Opinion, p. 7; CT 19-20.) | According to L.J., her father forced her to have sex with him every. Tuesday when her mother went to retrieve the siblings from school: Tuesdays were the days I.J. arrived homeearlier than her siblings. The | most recent incident of rape occurredafter the father asked the motherto go to the market and to take one of the twin brothers with her as the child had a habit of wanting to know whatothers in the home were doing. After the mother andchild left for the market, the father told LJ. to cometo his upstairs bedroom. He then went downstairs to check on the other siblings who remained in the home, and returned to LJ. Heinstructed LJ. to pull down her pants and underwear, and commanded her to bend over. Then, standing against her backside, heinsertedhis penis inside hervagina. (Opinion, p. 7; CT 19, 22.) CHS.452554.1 4 IJ. further reported her father once orally copulated her and had asked her to watch computer videos of fathers having sexual intercourse with their daughters. I.J. denied her father ever threatened hernot to disclose the abuse, buthe told herif she complied, he would permit her to have boyfriends, wear the clothes she wanted to wear, and attend her Quincifiera. (Opinion, p. 7; CT 19, 22.) LJ.'s statements to law enforcement and medicalprofessionals were consistent with the disclosures made to her mother and the DCFSsocial worker. (Opinion, p. 9; CT 113.) The medical findings also were consistent with the reported history of abuse. (CT 113.) LJ. denied having sex with anyone besides her father. (CT 22.) There had been a prior investigation in 2009 for sexual abuse, but IJ. recanted the allegations out of fear that her father would go to jail. She was willing to come forward now outoffear for her sister, who would soon be 11 years old, the age whentheir father began abusing I.J. (Opinion,p. 8; CT 22-23.) All the siblings reported positively abouttheir treatment in the home, denied being abused in any manner, and denied any ofthe siblings disclosed abuse. Though the motherreported the siblings had observedI.J. and the father spendtime alone togetherin the parents’ bedroom,the boys denied making such statements to motherand claimed to be unaware ofIJ. and the father ever being alone in the parents' bedroom. But L.J.'s sister CHS.452554.1 5 once heard the father and I.J. arguing in the parents' bedroom. When the sister went into the room,she saw I.J. behind the door andherfather at the computer. Both were clothed. (Opinion, pp. 8-9; CT 19-20.) While the siblings' statements remained consistent, I.J. later recanted the allegations, denied there had been an audio recording, denied she had disclosed the abuse to her mother, and denied everbeing left alone with her father. During the recantation, she mentioned her boyfriend waspressuring her to have sex and claimed they indeed had sex in a bathroomstall, but then could not describe the stall and stated the boyfriend's telephone did not work when the DCFSsocial worker asked for his number. (Opinion,p.8; CT 103-104.) Further investigation revealed that in 2005, the father's niece accused him of sexually abusing her when she was 14 years old andlived in the family's home. The allegations were substantiated by DCFS,butthe niece recanted, and criminal charges were dropped. (Opinion, p. 9; CT 108-109.) At the trial on October 17, 2011, the juvenile court received the DCFSreports in evidence, without objection. No party proffered any other evidence, documentary or testimonial. The court found L.J.'s disclosures of abuse credible because they were consistently made to DCFS,law enforcement, and to the forensic examiner, and because the disclosures were so detailed in describing the timing and mannerofthe abuse. In accord, the juvenile court declared all the children dependents under section CHS.452554.1 6 300, subdivisions (b), (d), and (j), retained them in the custody oftheir mother, and removed them from thefather's custody. (Opinion, p. 9; CT 184-185; Reporter's Transcript ["RT"] 208-209, 211.) The father timely noticed an appeal. (CT 188.) Il. PROCEEDINGS IN THE COURT OF APPEAL. The father appealed to the Second District Court of Appeal, challenging, in relevantpart, the findings ofjurisdiction undersection 300, subdivisions(b), (d), and (j), relating to LJ.'s brothers. (Opinion,p. 10.) In the Opinion,filed on June 29, 2012, andlatercertified for publication, Division Eight of the Second Appellate District affirmed the juvenile court's findings, in whole, including thoserelating to I.J.'s brothers. (Opinion,p. 10.) A. Majority Opinion. Preliminarily, the Majority, written by Justice Grimes, with Presiding Justice Bigelow concurring, found the evidence amply supported the true findings made bythe juvenile court, that IJ. indeed was sexually abused repeatedly by herfather. (Opinion,p.5, 10.) The Majority next rejected the notion that the positive treatmentofthe youngersiblings meant they were notat substantial risk of sexual abuse or physical harm. > On appeal, the father challenged all the jurisdictional findings, including thoserelating to I.J. and her sister. However, the arguments made before this Court pertain only to the findings made with regard to I.J.'s brothers. CHS.452554.1 7 (Opinion, p. 10.) With regard to I.J.'s sister, the Majority concluded, "there can be no legitimate dispute that the evidence places her at substantial risk of sexual abuse as she approaches[I.J.]'s age." (Opinion, p. 10.) Turning to the brothers, and noting appellate decisions concluding otherwise, the Majority held a juvenile court has the authority to take jurisdiction over boys whose father forcibly raped their sister. (Opinion, pp. 10-12, citing In re P.A. (2006) 144 Cal.App.4th 1339, In re Andy G. (2010) 183 Cal.App.4th 1405; disagreeing on this point with Jn re Rubisela E. (2000) 85 Cal.App.4th 177, 197-199, In re Alexis S. (2012) 205 Cal.App.4th 48, 49-50, 52, 55, In re Maria R. (2010) 185 Cal.App.4th 48, 67.) As repeated by the Majority: "{A]berrant sexual behavior by a parent placesthe victim's siblings who remain in the homeat risk of aberrant sexual behavior." (Opinion,p. 13, citing Jn re P.A., supra, 144 Cal.App.4th at p. 1347.) Concluding that the father's behavior was "aberrant in the extreme[,]" the Maj ority appreciated the boys were unawareofthe abuseat the time, but stated it was impossible for that unawareness to continue and determined the boys wereatrisk of learning to becomesexual predators and believing it was acceptable to manipulate someone more vulnerable. (Opinion,p. 13.) The Majority recognizedit was impossible to know what a specific sexual predator may doin the future, but "that very uncertainty makesit CHS.452554.1 8 virtually incumbent uponthe juvenile court to take jurisdiction over the siblings ...." (Opinion, p. 13.) Evidenceof aberrant sexual behavior of this magnitude — afather's rape of his minor, biological daughter ~ is sufficient to support a finding that the male siblings living in the homeare at risk. (Opinion, p. 13.) B. Dissenting Opinion. Justice Flier filed a concurring and dissenting opinion. Justice Flier agreed with the Majority as to the findingsrelating to IJ. and hersister, but did not agree with the holding pertaining to the brothers. (Opinion, p. 14.) Justice Flier opined the evidence relating to the brothers showed they were well cared for and safe. (Opinion, pp. 14-15.) The Dissent stated that to find a child at risk of sexual abuse, a court mustfind the child in danger of a specific sex act "committed by the perpetrator on a victim, including child molestation . . . and does not include in its enumerated offenses the collateral damage on a child that mightresult from the family's or child's reaction to a sexual assault on the child's sibling." (Opinion, p. 15, citing In re Maria R., supra, 185 Cal.App.4th at pp. 67-68, omitting italics.) The Dissent recognizedthe split in authority on this point and concluded the evidence wasinsufficient without a showingthat the perpetrator of sexual abuse against a femalechild is likely to similarly abuse a male child. (Opinion,p. 15 .) Hf CHS.452554.1 9 fil. ACTIONS IN THE SUPREME COURT. The fatherfiled a Petition for Review in the California Supreme Court, which was granted on September 19, 2012. QUESTION PRESENTED Whethera father's forcible, repeated, incestuousrapeofhis biological daughter, which had been ongoing for three years and began whenthe child was 11 years old, is sufficient to support a finding that male siblings living in the homeareat substantial risk of sexual abuse or other harm. STANDARD OF REVIEW The father claims this Court should review the Opinion de novo, but in the body ofhis brief makes insufficiency of the evidence arguments. (See BriefofPetitioner J.J. on the Merits ["PB"] 2, 12.) As fashioned by this Court, the issue at bar is whether the presentedfacts were sufficient to support dependencyjurisdiction over the male siblings. Indeed, a juvenile court’s jurisdictional findings routinely are reviewed for substantial supporting evidence. (In re James C. (2002) 104 Cal.App.4th 470, 482.) Underthis standard, the reviewing courts examine the whole record in a light most favorable to the findings and conclusionsofthe lowercourt and indulge all legitimate inferences in favor of them. Un re Tania S. (1992) § Cal.App.4th 728, 733-734; In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.) CHS.452554.1 10 However, regardless of whetherthe standardofreview is the substantial evidence test or de novo review, the Opinion should be affirmed. The evidencepresentedin the caseat bar fell well within the statutory provisions describing when a juvenile court can take jurisdiction over a child. A juvenile court is permitted to act to protect not only abused children, but also children at risk of abuse. Lookingat the relevantstatutes, the risk to LJ.'s male siblings, even assuming they werenotat risk of being raped, permitted the juvenile court to take action to protect them. ARGUMENT Dependencylawsseek to protect not only the child victims from abuse, but also those children atrisk of abuse. "(T]he purpose of [dependencylaws] is to provide maximum safety and protection for children whoare 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.) To help accomplish this goal, section 300 describes the categories of children who maybe adjudged dependents of the juvenile court. The relevant subdivisions here are (b) (failure to protect), (d) (risk of sexual abuse), and (j) (sibling abuse). Asis explained below,the father's ongoing, incestuousrape of I.J., done at times whenthe siblings wereat the home, CHS.452554.1 11 provided substantial evidenceto support the assumption ofjurisdiction over all the children undersection 300, subdivisions (b), (d), and (j). I. THE FATHER'S REPEATEDRAPEOFHIS BIOLOGICAL DAUGHTER, DURING TIMES WHEN THE SIBLINGS WERE ALSOIN THE HOME, WAS SUFFICIENT EVIDENCE TO ASSERT DEPENDENCY JURISDICTION OVER THESIBLINGS. Section 300, subdivision (d), permits a court to assumejurisdiction over a child who has been sexually abusedoris at substantial tisk of sexual abuse, as defined in Section 11165.1 ofthe Penal Code,byhis orher | parent, guardian, or a memberofthe household, or where the parent or guardian failed to protect the child from sexual abuse when he/she knew or should have knownofthe abuse. (§ 300, subd. (d).) Similar to the "failure to protect" clause in subdivision (d), subdivision (b), permits a court to assume jurisdiction over a child whois suffering orat risk of suffering serious physical harm orillness resulting from the failure or inability of his/her parent to supervise or protect the child. (§ 300, subd. (b).) Neither subdivision requires a court to find that the subject child has been actually harmed, only that the child is at substantial risk of harm. (See § 300, generally.) Subdivision (j) jurisdiction is warranted where a child was abused or neglected andthere is a substantial risk the child's siblings will be abused or neglected as well. Subdivision G), permits juvenile courts to protect the siblings who may not yet have been abused or neglected. CHS.452554.1 12 Here, the male siblings fall squarely into all three subdivisions as the children wereat risk of sexual abuse and other harm at the handsoftheir father.’ A. The Juvenile Court Correctly Assumed Jurisdiction over I.J.'s Male Siblings under Section 300, Subdivision(d). The Court of Appeal properly sustained jurisdiction overI.J.'s male siblings under section 300, subdivision (d). The appellate court reasoned that I.J.'s brothers, though unaware of the sexual abuse, were not likely to remain ignorantof that fact indefinitely. (Opinion, p. 13.) The appellate court also reasoned that IJ.'s brothers, once awareoftheir sister's sexual abuse bytheir father, could,inter alia, become sexual predatorslike their father. (Opinion, p. 13.) The Majority aptly noted that the unpredictable nature of sexual predators makes it incumbent upon juvenile courts to assert jurisdiction over any child living in the home. (Opinion, p. 13.) This commonsense approachis supportedbythestatute's plain language, consistent with other dependency andcriminalstatutes, and the case law interpreting them. Reviewing courts need only determine whether the overall jurisdictionalruling overthe children, not the particular subsets, was appropriate in order to affirm. (Jn re La Shonda B. (1979) 95 Cal.App.3d 593, 599-600.) "The reviewing court may affirm a juvenile court judgment if the evidence supports the decision on anyone ofseveral grounds... ." (in re Jonathan B. (1992) 5 Cal.App.4th 873, 875, 877.) Regardless, in the case at bar, substantial evidence supported the findings ofjurisdiction under all three subdivisions, (b), (d), and (j), of section 300. CHS.452554.1 13 1. Thestatute's plain language. Section 300, subdivision (d), permits a Juvenile court to assert jurisdiction where: The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code,by his or her parent or guardian or a memberofhis or her household,or the parent or guardian hasfailed to adequately protect the child from sexual abuse whentheparentor guardian knew or reasonably should have knownthat the child was in danger of sexual abuse. Thus, jurisdiction is warranted when a child has been sexually abused,is at risk of sexual abuse as defined by Penal Codesection 11165l, or the parentfails to protect the child from sexual abuse. (§ 300, subd. (d).) Penal Code section 11165.1, refers to specific acts of sexual abuse and includes sexual assault, incest, and child molestation. (Pen. Code § 11165.1, subd. (a).) The definition of "child molestation" is set forth in Penal Code section 647.6. (Pen. Code § 11165.1, subd. (a).) The California Supreme Court explained the primary purpose of Penal Codesection 647.6,is the "protection of children from interference by sexual offenders, and the apprehension, segregation and punishment of the latter." (People v. Brandao (2012) 203 Cal.App.4th 436, 441 [citing In re Gladys R. (1970) 1 Cal.3d 855,868, internal quotation marks omitted].) Penal Code section 647.6 and the case law interpreting it broadly define CHS4525541 14 “child molestation" as not requiring a touching, but instead necessitating only (1) conduct a normal person would unhesitatingly be irritated by and (2) conduct motivated by an unnatural or abnormal sexualinterest. (Ibid.) Thus, the statutory scheme envisions that sexual abuse does not require a touching and canconstitute otherwise innocuous acts that are objectively irritating or harassingto a child and subjectively motivated by an unnatural or abnormal sexualinterest by the perpetrator. In determining whether the defendant's conduct would unhesitatingly irritate or disturb a normal person, courts employ an objective test, not dependent on whether the child wasin fact irritated or disturbed. (/bid.) Thus, the fact that the siblings were at the home during timesofthe abuse and could have walked in on it, meanttheir father "failed to adequately protect [them] from sexual abuse ...." (§ 300, subd.(d).) In People v. Kongs (1994) 30 Cal.App.4th 1741, 1751, the Court held that photographing a child may constitute sexual abuse. In thatcase, _ the defendant attended family photo shoots and posed and photographed girls, none ofwhom were nude, with their legs spread and their underwear or genitalia showing with his camera focused on that area. The defendant told police that he received a roller-coasterlike thrill from his activities, and described it as a "fetish." (Id. at p. 1747.) The Court held the evidence sufficient to sustain the charge of annoying or molesting a minor under Penal Codesection 647.6. (Id.at p. 1751.) CHS.452554.1 15 In People v. Thompson (1998) 206 Cal.App.3d 459, 468, the Court foundthat repeatedly driving past a child while staring and gesturing at her may constitute sexual abuse. The Thompson Court held that the Penal Code does not require the specific act be lewd or obscene; rather the statute requires proof of acts that a normal person would be unhesitatingly irritated by, and that the acts be motivated by an abnormal orunnaturalinterest toward the child victim. (Jbid.) In People v. Brandao, supra, 203 Cal.App.4th at p. 441, the Court held that sendingan inappropriate text message to a child may constitute sexual abuse. There, the Court held that although no specific intentis required under Penal Code section 647.6, subdivision (a)(1), the statute does require that the act be motivated by an unnatural or abnormalsexual interest or intent with respect to children. (bid.) In People v. Brandao, a 15-year-old girl received numeroussexually suggestive text messages from her high school soccer coach who was 37 yearsold. (Id. at p. 440.) Other girls had also received suggestive messages. (Ibid.) The Court rejected the defendant's argument that he was joking and did not meanto hurt or take advantage of the girls. (Jd. at p. 441.) The appellate court reasoned that Penal Code section 647.6, subdivision (a)(1), requires no specific intent, | onlythat the acts be "motivated by an unnatural or abnormal sexualinterest or intent with respect to children." (/bid.) CHS.452554.1 16 The Court of Appeal in People v. Phillips (2010) 188 Cal.App.4th 1383, 1395, found the evidence sufficient to support a conviction under Penal Code section 647.6, even though there wasno specific child targeted. The People v. Phillips Court concluded that the man's actions — masturbating in his car parked outside a school — showedanintent to be observed by a child. (/bid.) While the father here may not have intended for his sons to observethe abuseofI.J., his actions certainly placed them at tisk of such. Children at risk are expressly protected by section 300, subdivision (d). A father whorapeshis biological daughter while his sons are in close proximity can besaid to have committed an act "motivated by an unnatural or abnormalsexualinterest or intent with respect to children." (bid.) And, while the father's sexualinterest or intent may not have been directed at his male children, his rape oftheir sister, while the sons wereat the home, placed the boysat risk. And, even thoughthe father may not have intendedforhis sonsto see the abuse oftheir sister, he certainly did not protect them from thatpossibility, thus triggering section 300, subdivision (d). Thus, the statutory scheme's broad definition of sexual abuse does not discount non-touching offenses,orthe risk of them, as merely "collateral damage,"as claimed by the Dissent (Opinion, p. 15), but CHS.452554.1 17 properly categorizes them as varying types of sexual abuse for which dependencyjurisdiction under section 300, subdivision (d),is proper. 2. Both dependency and criminal statutes protect boys from sexual predators who have abusedgirls. A look at other dependency andcriminalstatutes confirms the conclusion that a male child, wholives in the same household as a parent whohas committed ongoing acts of incestuousrape,is at risk of harm or abuse as defined by section 300, subdivision (d). For example, section 355.1, in relevant part, creates a presumption that any child, whose parent previously was found to have committed acts of sexual abuse as defined by Penal Code section 11165.1 or is required to register as a sex offender under Penal Codesection 290,is subject to the juvenile court's jurisdiction. (§ 355.1, subd. (d).) The presumption does not distinguish between male and female abuse victims. The Legislature enacted section 355.1, subdivision (d), in 1999, as emergencylegislation. (Stats. 1999, ch. 417 § 2, eff. Sept. 16, 1999.) The Legislature acknowledged that children were placed at risk "when permitted contact with a parent or caretaker who has committed a sex crime." (Leg. Com. com., West's Ann. Welf. & Inst. Code (2008 ed.) foll. § 355.1, at p. 499.) Section 355.1, subdivision (d), was designedto provide children with "greater protection from sexual abuse by requiring a person with a history of sexual abuse to bring forth evidencesufficient to show CHS.452554.1 18 that the minorin that person's care or householdis notat risk of harm." (Assem. Com.on Judiciary, Analysis of Sen. Bill No. 208 (1999-2000 Reg. Sess.) as amended May 13, 1999.) Section 355.1, subdivision (d), makes no distinction based on the genderofthe prior victim and the genderofthe child subject to the dependency court proceedings. While not directly applicable to the caseat bar, section 355. 1, subdivision (d), demonstrates the commonsense notion that siblings of molested childrenareat risk of sexual abuse and areentitled to the protection ofthe juvenile court. (/n re P.A., supra, 144 Cal.App.4th at p. 1347.) The father makes much ado aboutthe inapplicability of section 355.1. (PB 30-43.) Respondent acknowledges the presumption wasnot triggered in the instant matter. Indeed, at trial, DCFS wasthe onlyparty to proffer evidence;clearly, the juvenile court did not shift the burden to the father. (RT 201-204.) Section 355.1 is relevant, however, to illustrate a legislative concern aboutany child living in a home with a sexual predator. Hadthe fatherhere, years earlier, been convicted of sexual] abuse, the section 355.1 presumption would have been triggered, and the male siblings living in the home would have been adjudged dependents unless the father produced evidence that he no longer posed a threat. It logically follows that whenajuvenile court finds a father has perpetrated incestuous rape against his daughter while male siblings were in the home, the court is authorized CHS.452554.1 19 to find the boys atsimilar risk and assert dependencyjurisdiction over them. Similarly, section 361.5, subdivision (b)(6), though notdirectly applicable to the caseat bar, also acknowledges that siblings of molested children, regardless of gender, are at risk of sexual abuse whenin the same homeas the sexual predator, and are entitled to the protection of the juvenile court. Section 361.5, subdivision (b), lists circumstances where a Juvenile court, after removing a child from parental custody, can deny a parent reunification services and immediately place the child in a permanent, out-of-home plan. Subdivision (b)(6), permits a court to forego reunification services where "the child has been adjudicated a dependent pursuant to any subdivision of Section 300 asa result of severe sexual abuse . . . to the child, a sibling, or a half sibling by a parent or guardian." . (§ 361.5, subd. (b)(6).) Included in the definition of "severe sexual abuse" is intercourse. (Ibid.) Thestatute makes no distinction between the gender of the child and the abused sibling, thus further evincing a legislative determination thatsiblings of severely sexually abused children, regardless of gender, are at substantial risk of harm. Correspondingly, under section 290ofthe Penal Code, all persons convicted of a sex crime are subject to mandatory lifetime registration as a sex offender. This includes defendants convicted ofmolesting children under Penal Codesection 647.6. The purposes ofPenal Code section 290 CHS.452554.1 20 are twofold: (1) to ensure sexual predators are readily available for police surveillance becausethey are likely to commit similar offensesin the future and (2) to allow the public to take protective measures by identifying the presenceof sex offenders. (See Stats. 1996, ch. 908, § 1, subd. (b), p. 5105; see also People v. Brandao, supra, 203 Cal.App.4th at p. 441.) California law also provides for residencyrestrictions for sex offenders, barring them from living within 2,000 feet of schools and parks where children congregate. (Pen. Code § 3003.5, deemed unconstitutional as applied in Jn re Taylor (2012) 209 Cal.App.4th 210.) These provisions make no distinctions based on the genderofthe victims andthe children intended to be protectedin the future, evincing a legislative understanding that child sexual predators posea risk to all children. 3. Case law supports a finding ofjurisdiction under section 300, subdivision (d), Applying case law that analyzessection 300, subdivision (d), to the instant facts, demonstrates the juvenile court tightly assumedjurisdiction over I.J.'s brothers under section 300, subdivision (d). In In re Joshua J. (1995) 39 Cal.App.4th 984, the Fourth District Court ofAppeal heldthat a father who sexually abused a six-month-old boy reasonably could be foundto pose a risk of sexual abuseto the father's newborn son. (/d. at p. 987.) The finding wasinferentially supported not only by the nature of the abuse, but also by evidence showingthat the CHS.452554.1 21 father suffered from serious mental-health problemsas well. (Id.at pp. 987-988, fn. 3.) In Jn re Karen R. (2001) 95 Cal.App.4th 84, the Second District Court of Appeal held that a father who had committed two incidents of forcible incestuousrape of his own daughter whenshe was 13 years old reasonably could be found "to be so sexually aberrant" that the siblings of the victim, both male, age eight, and female, age six, were at substantial risk of sexual abuse as well. (/d. at pp. 90-91.) "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 malesibling, the danger of sexual abuseto the malesibling is nonetheless substantial. Given the facts ofthis case, the juvenile court reasonably could conclude every minorin the home, regardless of gender, was in substantial danger of sexual abuse by father." (dd at. p. 91.) Inre P.A., supra, 144 Cal.App.4th 1339, is another case from the Second District Court ofAppeal, which found younger brothers wereatrisk of sexual abuse even though the abuseperpetrated againsttheir sister was far less severe than the abuse suffered in In re Karen R. (Id. at p. 1346- 1347.) The Court reasoned there was evidence to support the finding because the boys were approaching the age at which the father began to abusetheir sister, and he had accessto the boys. (/d. at p. 1342.) The In re P.A. Court reached this result even though there was no evidencethe father CHS.452554.1 22 had ever engaged in homosexual behavior, the father had been participating in sexual abuse counseling and parenting classes, the boys had not been sexually abused, and the boysindicated they were unawareofthe abuse of their sister. (/d. at pp. 1345-1347.) The Court stated, "The juvenile court properly could concludethatfather's presence in the homeplacedhis sons at risk of sexual abuse." (Id. at p. 1347.) In support ofits holding, the Jn re P.A. Court cited the presumption of section 355.1, explained above. (id. at p. 1147.) To recall, section 355.1 creates a presumption that any child whose parent previously was found by a court to have committed acts of sexual abuse as defined by Penal Code section 11165.1 or is required to register as a sex offender,is subject to the juvenile court's jurisdiction. (§ 355.1, subd. (d).) While the presumption wasnottriggered in Jn re P.A., the Court nonetheless concludedthat section 355.1 evinced a legislative determination that "siblings of sexually abused children are at substantial risk ofharm and are entitled to protection by the juvenile courts." (/d. at p. 1147.) Similarly, here, though section 355.1 wasnot triggered, the presumption, which does not distinguish between male and female abuse, evinces an understanding that sexual predators pose a risk to all children in the home, not just the female children. What the casescited aboveillustrateis that the sexual abuse of a female child does not preclude a finding that another child, including a CHS.452554.1 23 male child, is at substantial risk of sexual abuse while in the abuser's custody. This particularly is true where, as here, the abuser’s conduct exhibits a high degree of sexual deviance and was done while other children were in the home. The Second Appellate District echoed these conclusions in Jn re Andy G. (2010) 183 Cal.App.4th 1405, in holding that regardless of whether the male child witnessed the father molest his sister, the father's act of sexually abusing his daughter while the son wasliving in the same home. or sharing the same room "evinces, at best, a total lack of concern for whether [the son] might observe[the father's] aberrant sexual behavior." (id. at p. 1414.) The appellate court affirmedfindings that a two-year-old boy wasatrisk of sexual abuse where the father sexually abused the boy's 12-year-old and 14-year-old half-sisters. (/d. at pp. 1409-1410, 1415.) In affirming the risk-of-abuse findingasto the boy, the Court noted that the father had exposed himselfto his stepdaughter in his son's presence, and that the father had used his son to gain accessto his stepdaughters,all of which inferentially supported a finding that the father had no concern for causing his son to witness aberrant sexual behavior. (Id. at p. 1414. See also In re Ana C. (2012) 204 Cal.App.4th 1317, 1332.) However, the Second District, a year prior to its decision in Jn re Karen R., supra, held that a father who sexually abusedhis 13-year-old daughter multiple times, including forcing herto orally copulate him, CHS.452554.1 24 inferentially supported a finding that the nine-year-old daughter wasatrisk, but declinedto find the brothers at risk. (In re Rubisela E., supra, 85 Cal.App.4th at pp. 193, 197, 199.) The Court foundit reasonableto conclude that in the 13-year-old's absence, the father would likely focus on the nine-year-old daughter, but could not makea similar finding relating to the boys. (Ibid.) That said, the Court went on to acknowledgethe "real possibility that brothers of molested sisters can be molested [citation] or in other ways harmedbythefact of the molestation within the family. Brothers can be harmed by the knowledgethat a parent has so abused thetrust of their sister. They can even be harmed bythedenial ofthe perpetrator, the spouse's acquiescence in the denial, or their parents' efforts to embrace them in a webofdenial." (/d. at p. 198.) Thus, though comingto a different ultimate conclusion, the Jn re Rubisela E. Court recognized that under different facts, the sexual abuse ofa girl may justify jurisdiction over her brothers. (See Ibid.) In dn re Maria R., supra, 185 Cal.App.4th 48, relied uponby the father and the Dissent (Opinion, p. 15; PB 18-22), the Fourth District Court of Appealruledthat in the absence of evidence showingthe sexual predator had demonstrated an interest in male children, such asa scientific study showing that a person who sexually abuses a female child is likely to sexually abuse a male child, the evidence wasinsufficient to support a CHS.452554.1 25 finding that a boy wasat risk of sexual abuse based onthe abuseofhis sister. (/d. at pp. 67-68; see also Jn re Alexis S. (2012) 205 Cal.App.4th 48, 55; In re JordanR. (2012) 205 Cal.App.4th 111, 138-139.) The /n re Maria R. Court stated that dependencyjurisdiction under section 300, subdivision (d), must "refer[] to specific sex acts committed by the perpetrator ona victim,including child molestation . . . and doesnot includein its enumerated offenses the collateral damage ona childthat might result from the family's or child's reaction to a sexual assault on the child's sibling." (In re Maria R., supra, 185 Cal.App.4th at pp. 67-68.) But as explained above, "child molestation" does not require a touching, but instead requires (1) conduct a normal person would unhesitatingly be irritated by, and (2) conduct motivated by an unnatural or abnormal sexual interest. (People v. Brandao, supra, 203 Cal.App.4th at p. 441.) The ongoing abuse of female children in the home while the male children are present places the boys at risk of encountering the abuse and thusplaces them at risk of child molestation. This is particularly true where, as here, the abuse included the ongoing incestuousrape, beginning when thevictim was only 11 years old. The nature of the abuse, duration ofit, thevictim's prepubescentage (for a duration of the abuse), and the fact that the father so brazenly abused [.J. in the home while the siblings werethere, revealed a depth of depravity, lack of control, and callousness. Thefather revealed a character so depraved, so CHS452554. 26 aberrant, and so immoralthatit fully supported thetrial court's finding that any children living in his household, both boysandgirls, wereat risk of his sexual predations. Moreover, the cavalier and brazen natureofthe father's acts, by perpetrating the abuse while other children were in the home, indicates the male siblings were, at a minimum,placedatrisk of being exposedto the abuse. That risk of exposure was enough to warrant jurisdiction under section 300, subdivision (d). Thus, regardless of whether this Court reviews the instant matter de novoor for substantial supporting evidence, the Opinion should be affirmed. B. The Evidence Supports a Finding of Dependency Jurisdiction over the Male Siblings Under Section 300, Subdivision (b). A child comes within the jurisdiction of the juvenile court under section 300, subdivision (b), when: The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm orillness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child... . (§ 300, subd. (b).) Section 300, subdivision (b), has been held to cover a wide variety ofphysical harmsorillnesses to children, ranging from exposure to domestic violence to sexual abuse. (See, e.g., In re R.C. (2012) 210 Cal.App.4th 930 [exposure to domestic violence mayserveas the basis for jurisdiction under § 300, subd. (b)]; Jn re Jason L. (1990) 222 Cal.App.3d CHS.452554.1 27 1206 [physical force required to molest children while a perpetratoris aroused constitutes "bodily harm"].) In Jn re Jason L., the Fourth District Court of Appealheld that sexual abuse constitutes a substantial danger to a child's "physical health." (dn re Jason L., supra, 222 Cal.App.3d 1206, 1216.) In that case, the father challengedthe juvenile court's decision to remove his son from the father's custody based on evidencethat the father had sexually molested his daughter whenshe visited the home. (Jbid.) In finding the evidence sufficient to supportremoval, the appellate court recognized that section 361, subdivision (b)(1), requires a finding of "a substantial danger to the physical health of the minor[,]" before removing the child from the home of the custodial parent. The Court concluded the operative phrase "physical health" was synonymous with "bodily." (Ibid., citing People v. Lambert (1985) 165 Cal.App.3d 716.) The In re Jason L. Court reasoned that even if a sexualpredator did not use violence to force his victimto engage ina sexualact, the physical force required to perform the act ona child while the perpetrator was aroused metthe standard for bodily harm. (dd. atp. 1217.) In the case at bar, the father and Dissent highlight the evidence that the brothers “felt safe with father" and " wished to continue living with him[.]" (PB 14-15; Opinion, pp. 14-15.) But these facts do notrule out a finding undersection 300, subdivision (b). "The court need not wait until a CHS.452554.1 28 child is seriously abusedor injured to assumejurisdiction and take the steps necessary to protectthe child." (in re R.V. (2012) 208 Cal.App.4th 837, 843, citing In re Heather A. (1996) 52 Cal.App.4th 183, 194-196, citing Zn re Michael S. (1981) 127 Cal.App.3d 348, 357-358.) Because sexual abuse constitutes "bodily harm," and becausethe father's actions here were so depraved and aberrant, the assumption of dependency jurisdiction overall of LJ.'s siblings—male and female—wasproper undersection 300, subdivision (b). "It is of course impossible to say what any particular sexual predator . . . is likely to do in the future in any particular instance.. . [bJut . . . that very uncertainty makesit virtually incumbent upon the juvenile court to take jurisdiction overthe siblings, at least until such time as the offending parent produces evidencethat the siblings are notat substantial risk of sexual abuse or other harm." (Opinion,p. 13.) OF The Juvenile Court Correctly Utilized Section 300, Subdivision (j), to Assume Jurisdiction over I.J.'s Male Siblings. Subdivision (§) jurisdiction is warranted where thechild's sibling wasabused or neglected and there is a substantial risk the child will be abused or neglected as well. In reviewingthelegislative history of section 300, subdivision (j), the court in In re Jason L., supra, 222 Cal.App.3d at p. 1215, noted: "Prior to 1989, Welfare and Institutions Code section 300 did not specify sibling abuse as a ground for declaring a child a dependent of the juvenile court. Nonetheless, case law upheldpetitions seeking to CHS.452554.1 29 declare children dependents onthis basis." (See also Jn re Dorothy I. (1984) 162 Cal.App.3d 1154, 1157-1158; In re MichaelS. (1981) 127 Cal.App.3d 348 [overruled on other grounds in In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667]; In re Edward C. (1981) 126 Cal.App.3d 193, 203; In re Jeannie O. (1973) 32 Cal.App.3d 288,304.) Subdivision (j) was intended to expand the groundsfor the exercise ofjurisdiction as to children whosesibling had been abused or neglected as defined in subdivisions(a), (b), (d), (e), or (i). (in re Ashley B. (2012) 202 Cal.App.4th 968, 982-983.) Subdivision (j) does notstate thatits application is limited to the risk that the child will be abused or neglected in the same mannerasthesibling. Rather, subdivision (j) directs the trial court to consider whetherthere is a substantial risk that the child will be harmed undersubdivisions(a), (b), (d),(e), or (i) of section 300, notwithstanding which of those subdivisions describes the child's sibling. Further, subdivision (j) contains a specific legislative directive to consider multiple factors, including "the circumstances surrounding the abuse or neglectofthe sibling, the age and gender of each child, the nature of the abuse or neglect ofthe sibling, the mental condition ofthe parent or guardian, and any otherfactors the court considers probative in determining whetherthere is a substantial risk to the child." (§ 300, subd. (j).) The "nature ofthe abuse or neglect ofthe sibling" is only one of manyfactors that the court is to consider in assessing whetherthe child is at risk of abuse CHS.452554.1 30 or neglect in the family home. (Jbid.) 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 ofthe other subdivisions. (See In re Maria R., supra, 185 Cal.App.4th atp. 64.) The broad language of subdivision (j) clearly indicates that thetrial court is to consider thetotality of the circumstancesofthe child and his or her sibling in determining whetherthe child is at substantial risk of harm within the meaning of any of the subdivisions enumerated in subdivision (j). The provision thus accords thetrial court greater latitude to exercise jurisdiction as to a child whosesibling has been abused than the court would have in the absence of that circumstance. Further, limiting the application of subdivision (j) to the same ground foundto apply to the child's sibling would render subdivision (j) superfluous because the count could simply be filed underthe applicable subdivision. (See Jn re Maria R., supra, 185 Cal.App.4th at p.64.) The father's sexual abuse of I.J. provided a sufficient basis for the court to find that the other children — both males and females — were minors described by section 300, subdivision (j). Because the court found that the father had abused I.J. as defined in subdivisions (b) and (d), jurisdiction over the remaining children was proper undersection 300, subdivision(j). Thefather's ongoing sexual abuseof [.J. reflects a profound lack of judgment by an unreformed and unrepentant sexual predator. His aberrant CHS.452554.1 31 conduct and lack ofjudgmentconstituted sufficient evidence for the juvenile court to adjudge his remaining children dependentchildren under section 300, subdivision (j). Moreover, the father's sexual abuse of I.J. reflected a willingness to concoct elaborate schemesto get I.J. alone with him. He made excusesto get the motherout of the home. Heforced I.J. to watch "father-daughter" incest pornography. Such conduct indicates a conniving, calculating sexual predator who abusedhis role as a father to receive sexual gratification from his own biological child. His behavior andtotal lack of remorse,indicates he wouldnothesitate to abusehis parental authority in the future with regard to his other children. These facts further place the boysat risk of "learning to becomesexualpredators like father and of learning from father that it is appropriate to manipulate others who are more vulnerable." (Opinion, p. 13.) This is a reasonable inference. A sexually abusive and manipulative father living in the home creates an extremely dysfunctional home environmentandposesa risk to the well-being of any child in the home. (In re Maria R., supra, 185 Cal.App.4th at p. 69.) CONCLUSION The facts presented in the case at bar constituted substantial evidence to support dependency jurisdiction overall the children — I.J., her sister, and her brothers. The juvenile court did not need data showingthat sexual predators of female children may prey on boys, nor was DCFS CHS.452554.1 32 required to make a showing thatthe father had sexual proclivities toward boys, in orderto assert jurisdiction overI.J.'s brothers. The father's behavior was so obscene, so deviant, so aberrant, that he posed a riskto all children living in the home. Thus, the evidence amply supported jurisdiction overI.J.'s brothers under section 300, subdivisions (b), (d), and (Gj). The decision of the juvenile court and the Opinion supporting it, should be affirmed by this Supreme Court. DATED: December24, 2012 Respectfully submitted, JOHN F. KRATTLI County Counsel By EMERY EL HABIBY Deputy County Counsel Attorneys for Respondent CHS.452554.1 33 CERTIFICATE OF WORD COUNT PURSUANTTO RULE8.360 Thetext of this brief consists of 7.983 words as counted by the Microsoft Office Word 2003 program used to generatethis brief. DATED: December 24, 2012 Respectfully submitted, JOHN F. KRATTLI County Counsel By EincegBLL, EMERYEL HABIBY/ Deputy County Counsel Attorneys for Respondent CHS.452554.1 34 DECLARATION OF SERVICE STATE OF CALIFORNIA,County of Los Angeles: LINDA KAPPELERstates: I am andatall times herein mentioned have been a citizen of the United States and a resident of the County of Los Angeles, over the age of eighteen years and not a party to nor interested in the within action; that my business address is 201 Centre Plaza Drive, Suite 1, City of Monterey Park, County of Los Angeles, State of California; that I am readily familiar with the business practice of the Los Angeles County Counsel for collection and processing of correspondence for mailing with the United States Postal Service ; and that the correspondence would be deposited within the United States Postal Service that same day in the ordinary course ofbusiness. That on December 24, 2012, I served the attached ANSWER BRIEF ON THE MERITS IN THE MATTEROFLJ.et al., CASE NO. $204622, upon Interested Parties by depositing copies thereof, enclosed in a sealed envelope and placedfor collection and mailing on that date following ordinary businesspractices in the United States Postal Service, addressed as follows: Jack A. Love, Esq. Karen Rose, Esq. 3053 Rancho Vista Blvd., Suite H200 LADL3 Palmdale, California 93551 Law Office of Alex Iglesias (Counsel for Appellant Father) 1000 Corporate Center Drive, Suite 400 Monterey Park, California 91754 (Trial Counsel for Mother) Stephanie Miller, Esq. Clerk of the Court California Appellate Project Supreme Court of California 520 So. Grand Avenue, 4” Floor 350 McAllister Street Los Angeles, California 90071 San Francisco, California 94102-7303 I declare underpenalty ofperjury that the foregoing is true and correct. Executed this December 24, 2012,at Monterey Park, California. LINDA KAPPELER CHS.452554,1 DECLARATION OF PERSONAL SERVICE STATE OF CALIFORNIA,County of Los Angeles: LINDA KAPPELERstates: Iam employed in the County of Los Angeles, State of California, over the age of eighteen years and not a party to the within action. My business address is 201 Centre Plaza Drive, Suite 1, Monterey Park, California 91754-2142. On December24, 2012, I personally served the attached ANSWER BRIEF ON THE MERITSIN THE MATTER OF LJ.et al., CASE NO. S204622to the persons and/or representative of the court as addressed below: For a party represented by an attorney, delivery was madeto the attorneyor at the attorney's office by leaving the documents, in an envelope or package clearly labeled to identify the attorney being served, with a secretary or an individual in charge ofthe office, between the hours of 9:00 a.m. and 5:00 p.m. For the court, delivery was madeto the Clerk of the Superior Court by leaving the documents in an envelope or package,clearly labeled to identify the hearing officer being served, with the counter clerk in that office, between the hours of 8:30 a.m. and 4:30 p.m. Honorable Timothy R.Saito Juan Valles, Esq. Dept. 405 Children's Law Center | c/o Clerk of the Superior Court 201 Centre Plaza Drive, Suite 7 Edmund D. Edelman Children's Court Monterey Park, California 91754 201 Centre Plaza Drive, Suite 3 (Trial Counsel for Minors) Monterey Park, California 91754-2158 Clerk of the Court Court of Appeal Second Appellate District Division Eight 300 South Spring Street 2" Floor, North Tower Los Angeles, California 90013-1213 I declare under penalty of perjury that the foregoingis true and correct. Executed on December 24, 2012, at Monterey Park, California. LINDA KAPPELER CHS.452554.1
