Filed 5/16/16 In re William V. CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


In re WILLIAM V., a Person Coming
Under the Juvenile Court Law.

LOS ANGELES COUNTY                                                   B267270
DEPARTMENT OF CHILDREN AND                                           (Los Angeles County
FAMILY SERVICES,                                                     Super. Ct. No. DK08205)

         Plaintiff and Respondent,

         v.

WILLIAM V.,

         Defendant and Appellant.


         APPEAL from orders of the Superior Court of Los Angeles County, Akemi
Arakaki, Judge. Affirmed.
         Catherine C. Czar, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Office of the County Counsel, Mary C. Wickham, County Counsel and R.
Keith Davis, Acting Assistant County Counsel and Olivia Raquel Ramirez, Deputy
County Counsel, for Plaintiff and Respondent.
      Appellant William V. (Father), father of three-year old William V. (William)
appeals the juvenile court’s jurisdictional and dispositional orders. He contends
substantial evidence does not support the court’s finding that William was at risk
of sexual abuse within the meaning of Welfare and Institutions Code section 300,
subdivision (d) based on Father’s sexual abuse of a eight-year old female half-
sibling.1 He further contends substantial evidence does not support the court’s
finding that his use of methamphetamine placed William at risk within the
meaning of section 300, subdivision (b). Finally, he contends the court erred in
issuing an order removing William from his custody because he did not have
custody of William within the meaning of section 361, subdivision (c).
Alternatively, he contends the evidence was insufficient to justify the removal
order. We affirm.


              FACTUAL AND PROCEDURAL BACKGROUND
      The family came to the attention of the Department of Children and Family
Services (DCFS) in November 2014, when William’s half-sister, Elizabeth D.,
then eight years old, told school officials and a sheriff’s deputy that Father (not
Elizabeth’s biological father) had touched her inappropriately on three separate
occasions.2




1
      Undesignated statutory references are to the Welfare and Institutions Code.
2
      Mother and Father were not married and did not live together. At the time of
DCFS intervention, their relationship had been over for approximately six months.
During the week, William lived with Mother and his half-siblings, Elizabeth and
Jonathan. He spent the weekends with Father.

                                           2
             A. Evidence Pertinent to Sexual Abuse Allegation
      Questioned by the caseworker and another sheriff’s deputy the next day,
Elizabeth described the three incidents in more detail. The first incident occurred
in September, after Father picked her up from school. He drove her to his home
where they were alone together. He pulled her pants and underwear down and
touched her vaginal area. He then took off his clothing and lay on top of her, and
she felt his penis touch her. A second similar incident occurred shortly thereafter,
when she and Father were supposed to be shoe shopping. He took her to his home
and engaged in similar conduct as on the first occasion. The third incident
occurred in front of William and Jonathan, while they were all watching television
in Father’s room.3 Father took the girl’s pants off and touched her vaginal area.
Father instructed her not to tell anyone. Elizabeth also said Father had shown her a
book containing pictures of naked boys and girls.
      Mother was interviewed and said that four or five months earlier, Elizabeth
had accused Father of touching her inappropriately but had then recanted.4 She
confirmed that Father had recently taken Elizabeth to buy shoes, and that it was not
uncommon for Father to pick Elizabeth up from school.5 Prior to reporting the


3
        William, age two at the time, was pre-verbal. Jonathan, then age seven, was
autistic and also pre-verbal.
4
        The original and amended petitions alleged that Mother failed to protect the
children from Father. At the jurisdictional hearing, after hearing all the evidence, the
court struck the allegation. Once Mother was deemed nonoffending, the court also struck
the allegations pertaining to Elizabeth and Jonathan. Accordingly, Mother is not a party
to this appeal, and Elizabeth and Jonathan are not subjects of this appeal.
5
       At the request of law enforcement officials investigating the sexual abuse
allegations, the caseworker avoided interviewing Father about them. Father was referred
to a sexual abuse awareness program for perpetrators, but refused to participate on the
advice of counsel. A detective interviewed Father in March 2015. Father denied the
abuse. Father said he had been around Elizabeth since her father died and that he “‘saw
[her] as [his] own’” and wanted to be “the dad she didn’t have.”

                                            3
abuse, Elizabeth referred to Father as “Daddy” and was close to him. Mother
noticed her positive feelings about him changing around September 2014.
       After the November 2014 detention hearing, Elizabeth was interviewed by a
detective.6 Elizabeth initially told the detective Father touched her inappropriately
on multiple occasions. After the detective said it was important to tell the truth,
Elizabeth denied the abuse occurred, and said she did not like Father or want him
around Mother.
       In January 2015, a forensic interview of Elizabeth was arranged. She
confirmed the abuse and provided more detail than in prior interviews. Elizabeth
told the examiner that Father had given her an inappropriate book, and had shown
her sexual videos and pictures of naked people. She said Father hurt her by trying
to put his penis into her anus and vagina, and had her put her mouth on his penis
and rub his penis with her hand. She described him making thrusting motions,
moaning and ejaculating. She said she recanted when interviewed by the detective
because the detective claimed that Father had passed a lie detector exam and
threatened her with “kid’s jail.”7 She also said she was afraid of Father. The
forensic interviewer and the caseworker concluded, based on Elizabeth’s demeanor
and the specificity she provided, that she was telling the truth.
       At the August 2015 jurisdictional hearing, Elizabeth testified that appellant
touched her vaginal and anal areas with his hand and penis on multiple occasions,
and that he had her touch his penis with her mouth. She confirmed that on one



6
       DCFS left custody of the children with Mother, and detained William from Father.
At the detention hearing, the court placed temporary custody of the children with DCFS,
but released them to Mother. It granted Father twice weekly monitored visitation with
William.
7
        Elizabeth had previously told Mother that, despite what she said to the detective,
the allegations were true.

                                             4
occasion, William and Jonathan were in the room when inappropriate touching
occurred. She said she had recanted because she was afraid Father would hurt her.


      B. Evidence Pertinent to Drug Abuse
      Interviewed by the caseworker, Mother reported that Father was a habitual
user of “crystal meth,” that he started using methamphetamine at the age of 16 to
18, and that he had been using it consistently since. Mother said Father’s drug use
had had a negative impact on his life, causing him to sleep all day and display a
bad temper. She said his drug use caused him to have little patience with Jonathan,
her autistic child, and led to the breakup of their relationship.
      In January 2015, Father admitted having used methamphetamine “‘on and
off’” for the prior four or five years. He admitted his drug use had “‘a real
negative impact on [his] life,’” and caused “‘a lot of damage’” to himself and his
relationship with Mother. He claimed to have given up drug use for William’s
sake and to have been clean for 10 months. He denied ever using drugs at home or
around the children, or on the weekends when he had custody of William.
      Father became unemployed in January 2015, and was still unemployed at the
time of the jurisdictional hearing, seven months later. He had a 2013 arrest for
possession of methamphetamine, which led him to participate in a court-ordered
drug program. Mother said Father stopped using drugs after his arrest and
enrollment in the drug program, but started up again not long thereafter. In
February 2015, three months after the detention, Father enrolled in an outpatient
treatment program. Father tested positive for amphetamine and methamphetamine
in April 2015 and July 2015. He had negative drug tests in December 2014, and in
January, February, March and June 2015, but missed scheduled tests in January,
February, March, April, May, June and July 2015.


                                           5
      C. Trial Court’s Ruling
      At the August 2015 jurisdictional hearing, counsel for DCFS, the children,
and Mother urged the court to find the allegations of sexual abuse and drug use on
the part of Father true. Counsel for Father argued that Elizabeth was not credible
due to her history of making and recanting abuse allegations, and urged the court to
find that Father had not abused Elizabeth. Father’s counsel further argued that the
evidence did not support a connection between Father’s drug use and risk to
William, stressing the lack of direct evidence that Father was ever high when
caring for the boy. Counsel did not ask the court to find that William would not be
at risk of sexual abuse even if the court found Elizabeth credible and her
allegations true.
      The court found, based on the details in Elizabeth’s descriptions of the
sexual activities she had been subjected to, that Father had sexually abused her.
Specifically, the court found true that “[o]n numerous occasions” Father engaged
in inappropriate touching and placed his penis on the girl’s vagina and bottom, and
that on one occasion Father undressed and fondled Elizabeth while William and
Jonathan were present in the room. The court further found that these actions
endangered William’s physical health and safety and placed him at risk of physical
harm, damage, danger and sexual abuse within the meaning of section 300,
subdivision (d) (sexual abuse).8 The court also found true that Father was a current
user of methamphetamine, which impaired his ability to provide proper care and
supervision of William, endangering William’s physical health and safety and
placing him at risk of physical harm and damage within the meaning of section
300, subdivision (b) (failure to protect).


8
      The court dismissed duplicative allegations asserted under section 300,
subdivision (j) (abuse of a sibling).

                                             6
      The court ordered William to be “removed from [Father],” and placed in the
home of Mother. It directed DCFS to provide family maintenance services to
Mother. It instructed Father to complete a substance abuse program with random
testing and aftercare, a 12-step program, and a program of sexual abuse counseling
for perpetrators. Its order provided Father two hours of monitored visitation with
William, twice per week. Father appealed.


                                    DISCUSSION
      A. Jurisdiction
             1. Sexual Abuse
      Father contends the evidence establishing that Father sexually abused an
older, female half-sibling was insufficient to support that William was at risk of
sexual abuse. For the reasons discussed, we disagree.
      Section 300 permits the juvenile court to assert jurisdiction over a child who
falls within the provisions of one of its subdivisions, including a child who has
been sexually abused or is at substantial risk of being sexually abused (§ 300, subd.
(d)), or a child whose siblings have been abused in a manner that suggests the child
is at risk of similar abuse (id., subd. (j)). (See In re I.J. (2013) 56 Cal.4th 766, 772
(I.J.).) DCFS has the burden of proving by a preponderance of the evidence that
the child falls under one of the subdivisions of section 300. (I.J., supra, 56 Cal.4th
at p. 773.) “‘In reviewing a challenge to the sufficiency of the evidence supporting
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.” [Citation.] “We do not reweigh the evidence or
                                           7
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.]” [Citations.]’”
(Ibid.)
          Prior to the Supreme Court’s 2013 decision in I.J., appellate courts were
divided over whether evidence of a parent’s sexual abuse of a child of one gender
could justify the assertion of jurisdiction over a child of the opposite gender.9
Observing that “section 300 does not require that a child actually be abused or
neglected before the juvenile court can assume jurisdiction,” but requires only a
“‘substantial risk’” of abuse, the Supreme Court found that the risk of sexual abuse
to a child whose opposite gender sibling had been abused was not “nonexistent or
so insubstantial that the juvenile court may not take steps to protect the [child]
from that risk.” (I.J., supra, 56 Cal.4th at pp. 773, 779-780.) Accordingly, it held
that “a father’s prolonged and egregious sexual abuse of his own child may provide
substantial evidence to support a finding that all his children are juvenile court
dependents.” (Id. at p. 770.)
          In so holding, the court explained that juvenile courts may consider the
following factors, set forth in section 300, subdivision (j), to assist in determining
the degree of risk of harm to a child whose sibling has been sexually abused: “‘the


9
        (Compare In re Rubisela E. (2000) 85 Cal.App.4th 177, 198-199, disapproved in
part in I.J., supra, at 56 Cal.4th 766 and In re Maria R. (2010) 185 Cal.App.4th 48, 68,
disapproved in part in I.J., supra, at p. 766 [reversing assertion of jurisdiction over boys
based on fathers’ sexual abuse of older sisters], with In re Andy G. (2010) 183
Cal.App.4th 1405, 1414, In re P.A. (2006) 144 Cal.App.4th 1339, 1345-1347, and In re
Karen R. (2001) 95 Cal.App.4th 84, 90-91 [agreeing with juvenile court that fathers’
sexual molestation of daughters placed sons at risk].)

                                              8
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.’” (I.J., supra, 56
Cal.4th at p. 774, quoting § 300, subd. (j).) Courts also may consider the
egregiousness of the abuse and the “violation of trust” shown by sexually abusing
one child at a time and place where other children “could easily have learned of or
even interrupted the abuse.” (I.J., at p. 778.) In other words, juvenile courts are 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.” (Id. at p. 774.)
“[A]fter considering the nature and severity of the abuse and the other specified
factors, the juvenile court is . . . to use its best judgment to determine whether or
not the particular substantial risk exists.” (Id. at p. 779.)10
       Father contends the instant case is distinguishable because the father in I.J.
abused his own biological daughter, whereas the victim here was unrelated to
Father. Nothing in I.J. suggests juvenile courts are to apply a different analysis
when the abused sibling is not the biological child of the abuser. The factors
identified by the Supreme Court are equally applicable to that situation. Here, the
evidence established that Father had a long-term relationship with Mother
beginning when Elizabeth was quite young, that Elizabeth considered him to be her

10
        Father asserts that the holding in I.J. does not compel a finding that a sibling of the
opposite gender of the sexually abused child is at risk of harm. We have no quarrel with
that proposition. (See I.J., supra, 56 Cal.4th at p. 780 [“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.”].) Nothing in the record below indicates the juvenile court did not apply
the correct standard in making its jurisdictional finding, and Father does not suggest
otherwise in his brief.

                                              9
“daddy,” and that Father viewed Elizabeth as his own child. Father’s assumption
of a parental role over Elizabeth from a young age and his abuse of that position
supports a finding that he could not be trusted to maintain appropriate behavior
around his biological child.
       Appellant further contends I.J. is distinguishable because the abuse of
Elizabeth was not “prolonged,” “‘egregious’” or “‘aberrant in the extreme.’” We
disagree. The evidence established that the abuse began barely a month after
Elizabeth’s eighth birthday. The court specifically found that Father not only took
Elizabeth’s clothing off and touched her genital and anal areas with his hand and
penis on multiple occasions, but that he molested Elizabeth in the presence of
William. These findings were sufficient to support the assertion of jurisdiction.
(See, e.g., In re Ana C. (2012) 204 Cal.App.4th 1317, 1332 [father’s sexual abuse
of 11-year old with mental disabilities on couch in living room where abuse could
have been observed by other children supported “the commonsense conclusion that
most every person in the family home was at risk of sexual abuse”]; In re R.V.
(2012) 208 Cal.App.4th 837, 846-847 [upholding jurisdictional finding where boy
witnessed father’s abuse of older sibling and attempted to help her resist]; In re
Andy G., supra, 183 Cal.App.4th at pp. 1411-1415 [upholding jurisdictional
finding as to son where father exposed himself to stepdaughter while the boy was
in the room].)11 The abuse was less prolonged than in I.J. only because Elizabeth
reported it promptly. Moreover, Father unnecessarily intensified Elizabeth’s injury
and anguish by denying the first incident when confronted by Mother, and
continuing and escalating the abuse once he convinced Mother of the falsity of the


11
        As the court stated in I.J., the possibility that the child could have witnessed the
sexual abuse of the sibling is “relevant to the totality of the circumstances surrounding
the sibling abuse” which the court should consider in determining whether the child is at
risk. (I.J., supra, 56 Cal.4th at p. 778.)

                                             10
accusation. Father never acknowledged any inappropriate behavior, and rejected
therapy designed to prevent similar incidents from recurring. In short, the totality
of the circumstances surrounding the abuse of Elizabeth supported the court’s
determination that William was at risk of similar abuse. We find no basis to
reverse the court’s jurisdictional finding under subdivision (d) of section 300.


             2. Failure to Protect
      Father contends substantial evidence did not support a nexus between his use
of methamphetamine and risk of harm to William. “‘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 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.’” (I.J., supra, 56 Cal.4th at p. 773, quoting In re Alexis E. (2009) 171
Cal.App.4th 438, 451.) Nevertheless, we observe that the contention fails on the
merits.
      Appellant cites In re Drake M. (2012) 211 Cal.App.4th 754, which held that
“the mere usage of drugs by a parent is not a sufficient basis on which dependency
jurisdiction can be found,” and that a jurisdictional finding must be supported by
evidence of “a current substance abuse problem . . . .” (Drake M., supra, 211
Cal.App.4th at pp. 764, 766.) The court defined proof of a substance abuse
problem to include “recurrent substance use resulting in a failure to fulfill major
role obligations at work, school, or home”; “recurrent substance-related legal
problems”; and “‘continued substance use despite having persistent or recurrent
social or interpersonal problems caused or exacerbated by the effects of the
                                          11
substance . . . .’” (Id. at pp. 766-767.) The evidence presented here met the court’s
requirements. The numerous positive and missed tests throughout 2014
established that Father was a chronic user of methamphetamine. Father himself
admitted that the drug he had taken for years “‘had a real negative impact on [his]
life,’” and did “‘a lot of damage,’” including ruining his relationship with Mother.
Mother confirmed that Father’s habitual drug use had an adverse impact on his
temper and caused him to lose patience with her disabled son. At the time of the
jurisdictional hearing, Father had been unemployed for many months. He was
arrested and completed a treatment program in 2013, but relapsed not long
thereafter. He entered a new treatment program in February 2015 after a referral
by DCFS, but was unable to refrain from using the drug, even though he knew
positive and missed tests would negatively affect his ability to reunite with his
child. Moreover, in determining the effect of drug use on Father’s behavior, the
court was not required to ignore the evidence that he repeatedly molested an eight-
year old girl entrusted to his care. On the evidence presented, the court could
reasonably find that Father was a substance abuser, whose use of illegal drugs led
to aberrant sexual behavior and to a failure to fulfill major interpersonal
obligations, and that William could not safely be entrusted to his care.
Accordingly, the court’s finding that William was at risk within the meaning of
section 300, subdivision (b) as a result of Father’s methamphetamine use was
supported by substantial evidence, and formed an independent basis for assertion
of jurisdiction over William.


      B. Dispositional Order
      After finding that a child is a person described in section 300 and therefore
the proper subject of dependency jurisdiction, the court must determine “the proper
disposition to be made of the child.” (§ 358.) “A dependent child shall not be
                                          12
taken from the physical custody of his or her parents . . . with whom the child
resides at the time the petition was initiated, unless the juvenile court finds clear
and convincing evidence of [at least one of the circumstances listed in paragraphs
(1) to (5)] . . . .” (§ 361, subd. (c).) Section 361, subdivision (c)(4) permits
removal if “[t]he minor or a sibling of the minor has been sexually abused, or is
deemed to be at substantial risk of being sexually abused, by a parent . . . and there
are no reasonable means by which the minor can be protected from further sexual
abuse or a substantial risk of sexual abuse without removing the minor from his or
her parent . . . .”
       Father contends the court lacked authority to order William “removed” from
him because he was not the custodial parent within the meaning of section 361,
subdivision (c). (See In re B.L. (2012) 204 Cal.App.4th 1111, 1117 [“‘[T]here can
be no removal of custody from a parent who does not have custody in the first
place.’”].) Here, Mother and Father shared custody of William, who routinely
lived with Mother during the week and with Father on weekends. Prior to the
initiation of the underlying proceedings, there was no court order limiting Father’s
legal rights or granting physical custody to Mother. The fact that William
regularly resided with Father for a significant portion of time was sufficient to
deem him a custodial parent. (See In re Dakota J. (2015) 242 Cal.App.4th 619,
628 [recognizing the term “‘resides’” has historically meant “‘“‘to dwell
permanently or for a considerable time’”’”].)
       Alternatively, Father contends that the evidence was insufficient to support
the court’s finding that there were no reasonable means to protect William absent
removal. To support a dispositional order removing custody from a parent, the
court may consider “a broad class of relevant evidence” (In re Y.G. (2009) 175
Cal.App.4th 109, 116), including the parent’s “past conduct” and “present
circumstances.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) “‘“[T]he minor
                                           13
need not have been actually harmed before removal is appropriate The focus of
the statute is on averting harm to the child.” [Citation.]’” (In re John M. (2012)
212 Cal.App.4th 1117, 1126.) The court’s jurisdictional findings represent prima
facie evidence that the child cannot safely remain in the home. (Ibid.; In re Cole
C., supra, 174 Cal.App.4th at p. 917; In re T.V. (2013) 217 Cal.App.4th 126, 135.)
According to the court’s jurisdictional findings, Father repeatedly molested
William’s eight-year old sister, once in the presence of William and his autistic
brother. Despite acknowledging the adverse impact of his use of
methamphetamine and notwithstanding his enrollment in a drug treatment
program, he continued to use. The court was entitled to conclude, based on this
evidence, that removal from Father was the only reasonable means to protect
William’s safety.




                                         14
                                DISPOSITION
     The jurisdictional and dispositional orders are affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                            MANELLA, J.


We concur:




EPSTEIN, P. J.




WILLHITE, J.




                                       15
