Filed 8/9/13 In re Ashley H. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re ASHLEY H. et al., Persons Coming 

Under the Juvenile Court Law.

 B242786

 (Los Angeles County

 Super. Ct. No. CK90536)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

DOUGLAS H. et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles County. 

Jacqueline H. Lewis, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) 

Affirmed.

Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant 

and Appellant Douglas H.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and 

Appellant Elizabeth H.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and 

Melinda Green, Senior Associate County Counsel, for Plaintiff and Respondent.
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The issue in this case is whether a father‟s sexual abuse of his step-daughter 

supports a determination that his son is subject to the jurisdiction of the juvenile court in 

the absence of evidence that the father sexually abused or otherwise mistreated him. Our 

Supreme Court recently affirmed a jurisdictional finding on facts very similar to those 

before us and disapproved a line of Court of Appeal cases relied on by Father. (In re I.J.

(2013) 56 Cal.4th 766, 775-781 (I.J.); see also Los Angeles County Dept. of Children & 

Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 963-970.) We conclude 

that I.J. is dispositive of the issue and affirm the jurisdictional finding. 

The minor‟s mother also appeals, challenging the sufficiency of the evidence of 

her failure to protect her son, and contending that the juvenile court erred in removing the 

child from her custody. We see no error in the finding or order and so affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ashley H. is the daughter of E.H. (Mother) and step-daughter of D.H. (Father). 

Father raised Ashley from the time she was three years old and considers her to be his 

daughter. Mother and Father also have a son, Douglas H. 

On October 25, 2011, 14-year-old Ashley and 11-year-old Douglas were detained 

by the Los Angeles Department of Children and Family Service (DCFS) after Ashley 

disclosed to a school counselor that she had been raped multiple times by Father. When 

confronted with the allegations, Father denied them and Mother explained that Ashley is 

bipolar, suffers from depression, and is never left home alone unsupervised. She also 

stated Ashley claimed she had been raped the previous year, but fabricated the allegation 

in order to gain attention. Mother did not believe Ashley had been sexually assaulted. 

Ashley subsequently denied Father raped her. Ashley later stated she had been raped 

over a period of years, starting when she was 11, but refused to identify Father as her 

abuser. Douglas denied any knowledge of sexual or emotional abuse in the home. 

Appellants do not challenge the juvenile court‟s finding that Father sexually abused 

Ashley.
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In 1999, the juvenile court sustained a petition alleging that Father sexually abused 

his 13-year-old step-daughter, Dominique. Father was charged with continuous sexual 

abuse of a child in violation of Penal Code section 288.5, but the charges were dismissed 

for lack of evidence. Mother recalled that in 2001, shortly after she and Father married, 

she had accompanied Father to court regarding “some sort of abuse,” but that the case 

was dismissed.

DCFS filed a petition pursuant to Welfare and Institutions Code1section 300, 

containing allegations under subdivisions (b), (d), and (j). Counts b-1 and d-1 alleged 

that Father had forcible sexual intercourse with Ashley, Mother knew or should have 

known Ashley was being sexually abused, and Mother failed to protect her from Father. 

Counts b-2 and d-2 alleged that in April 1999, Father had sexually abused his stepdaughter Dominique. A single count was pled under subdivision (j) alleging Father‟s 

sexual abuse of Ashley and Mother‟s failure to protect Ashley from that abuse 

endangered Douglas‟s physical health and safety and placed him “at risk of physical 

harm, damage, sexual abuse and failure to protect.” The minors were detained and 

placed in separate foster homes.

The adjudication hearing, originally set for December 7, 2011, was held on 

June 13 and 14, 2012. Ashley was declared unavailable as a witness. The juvenile court 

received the DCFS reports and social workers‟ case notes into evidence; DCFS presented 

no other evidence in its case-in-chief. Father called four witnesses: a police detective 

and a social worker to whom Ashley recanted her story, Mother, and Ashley‟s adult 

sister, Jasmine. In closing argument, after reviewing the evidence supporting the 

allegation that Father had raped Ashley, DCFS described Mother‟s behavior as “almost 

as reprehensible as [Father‟s]” by calling Ashley a liar and refusing to provide her with 

any emotional support. DCFS argued that Father‟s conduct was “so heinous and 

mother‟s failure to protect so egregious that Douglas could not possibly be safe with 

these two parents.” 

1 Subsequent statutory references are to this code.
4

Douglas‟s counsel noted that Douglas wanted to return home. But after listening 

to Mother‟s testimony, he could not recommend that it was in Douglas‟s best interest to 

do so. Counsel indicated that it was “questionable” whether Father posed a risk to 

Douglas; however, “whether his mother is capable of protecting him if [Father] poses a 

risk is very, very clear from today‟s testimony.”2 Douglas‟s counsel asked the court to 

find that Mother failed to protect Douglas and that Father‟s sexual abuse of Ashley put 

Douglas at risk of emotional abuse. 

The juvenile court sustained the following allegations contained in the petition 

under Welfare and Institutions Code section 300: Father sexually abused Ashley and 

Mother failed to protect Ashley from Father‟s abuse, which conduct endangers Ashley‟s 

“health and safety and places [her] at risk of physical harm, damage, sexual abuse, and 

failure to protect” as described in section 300, subdivision (b); Father sexually abused 

Dominique in 1999, which conduct endangers Ashley‟s “health and safety and places 

[her] at risk of physical harm, damage, sexual abuse, and failure to protect” as described 

in section 300, subdivision (d); and Father‟s sexual abuse of Ashley and Mother‟s failure 

to protect her places Douglas “at risk of physical harm, damage, and failure to protect” as 

described in section 300, subdivision (j). 

The juvenile court addressed the risk to Douglas as follows: “[T]he court did 

dismiss Douglas out of the (d) allegations because I do not see, pursuant to recent case 

law -- or all case law, actually, that there is a specific risk of [Father] sexually abusing the 

child Douglas, based on his age and his gender. [¶] That being said, the Court did 

sustain the (j) allegation as to Douglas. Pursuant to the case of In re Maria R., 185 

Cal.App.4th 48, the Court really looked at whether or not the sibling of Ashley, Douglas, 

is at substantial risk of harm within any of the subdivisions enumerated in 

. . . subdivision (j). And I think that, clearly, for me, that is true. [¶] While I don‟t 

2 For instance, counsel stated that mother “ducked many questions today by 

following up with questions of her own, or, after she made testimony that she perceived 

as perhaps damaging, started muttering to herself and changing the testimony right there 

on the stand.” 
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necessarily believe that [Father] is a risk of sexual abuse to the minor Douglas, the risk of 

being raised by someone who has no problem forcibly raping 11-year-old girls puts this 

child at risk. [¶] And the same thing with the mother. Mother‟s unwillingness to protect 

Ashley from even this, even today, even after knowing everything here, clearly places 

Douglas as much at risk in his mother‟s care and custody, who would pick other people 

over her child, apparently, any time.” 

At the disposition hearing, the court admitted the “Last Minute Information” dated 

June 29, 2012. It stated that Mother had not maintained contact with Ashley or visited 

her since the adjudication hearing on June 14. Ashley reported she had attempted to 

contact her mother by phone, but received no response. Mother denied being upset with

Ashley, stating that she had been busy helping her older daughter move. 

At the disposition hearing, neither parent argued Douglas should be released to 

their care. Rather, they argued the court should allow unmonitored visits, with Mother 

requesting overnight visits. 

The juvenile court declared Ashley and Douglas dependents and removed them 

from their parents‟ care. The children were ordered suitably placed. Mother and Father 

were ordered to participate in reunification services. The court ordered monitored visits 

with Douglas and issued a no contact order between Father and Ashley. 

Mother and Father timely appeal the juvenile court orders.

II. CONTENTIONS

Father and Mother challenge the juvenile court‟s jurisdictional findings regarding 

Douglas under section 300, subdivision (j). Mother also challenges the disposition order 

removing Douglas from her care. Neither parent challenges the jurisdictional or 

dispositional findings or orders regarding Ashley.
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III. STANDARD OF REVIEW

“„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.” (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.)‟” (I.J., supra, 56 Cal.4th at p. 773.)

IV. DISCUSSION

1. Father’s appeal

The sole issue presented on Father‟s appeal is whether his sexual abuse of his 

stepdaughter by itself supports a finding under section 300, subdivision (j), that his son is 

subject to the jurisdiction of the juvenile court. That subdivision provides that a child is a 

dependent of the juvenile court if “[T]he 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 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 
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parent or guardian, and any other factors the court considers probative in determining 

whether there is a substantial risk to the child.”

As the parties acknowledge, our appellate courts have disagreed over whether 

subdivision (j) supports dependency jurisdiction over a minor such as Douglas in the 

absence of evidence that would support a finding of jurisdiction under subdivisions (a), 

(b), (d) (e) or (i), independent of the sexual abuse of the minor‟s opposite sex sibling. 

Thus, appellants rely on the reasoning of In re Alexis S. (2012) 205 Cal.App.4th 48, In re 

Maria R. (2010) 185 Cal.App.4th 48 and In re Rubisela E. (2000) 85 Cal.App.4th 177, to 

argue that Douglas is not subject to dependency court jurisdiction under subdivision (j), 

while respondent cites In re Andy G. (2010) 183 Cal.App.4th 1405, In re P.A. (2006) 144 

Cal.App.4th 1339 and In re Karen R. (2001) 95 Cal.App.4th 84, to argue for the opposite 

conclusion. Since the parties completed briefing on this appeal, our Supreme Court has 

resolved this conflict in the case law. 

In I.J., supra, 56 Cal.4th at page 770, the court addressed the issue of “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.” The court held 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” (id. at 

p. 780) and disapproved, to the extent they were inconsistent with this holding, the cases 

relied on by appellants. (Id. at pp. 780-781.) I.J. is dispositive of father‟s appeal. (Auto 

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [California Supreme 

Court decisions are binding on all state courts in California].)

2. Mother’s appeal

Mother contends that “[t]here is no evidence to support a reasonable inference that 

Father poses any risk of physical or sexual harm to Douglas; therefore, Mother‟s inability 
8

to properly protect Ashley from sexual abuse has no logical relation to her ability to 

protect Douglas.” This argument lacks merit.

The juvenile court recounted the evidence of Mother‟s failure to protect Ashley, 

including that she refused to consider the possibility Ashley was raped by Father, though 

she knew Father had forcibly raped another teenage girl living in his home. The court 

found Mother was “clearly lying” in her testimony, and chose to protect her relationship 

with Father instead of protecting her child. The court concluded, “Mother‟s 

unwillingness to protect Ashley from even this, even today, even after knowing 

everything here, clearly places Douglas as much at risk in his mother‟s care and custody, 

who would pick other people over her child, apparently, any time.” The finding is 

supported by substantial evidence and we will not disturb the trial court‟s credibility

assessment. (See In re Heather A., supra, 52 Cal.App.4th at p. 193.) 

Mother also challenges the dispositional order removing Douglas from her care. 

But Mother did not seek release of Douglas to her care at the disposition hearing, and so 

has forfeited the issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Were 

we to consider the argument, we would uphold the disposition order.

“The juvenile court has broad discretion to determine what would best serve and 

protect the child‟s interests and to fashion a dispositional order accordingly. On appeal, 

this determination cannot be reversed absent a clear abuse of discretion.” (In re Baby 

Boy H. (1998) 63 Cal.App.4th 470, 474; see also In re Christopher H. (1996) 50 

Cal.App.4th 1001, 1006.) A court abuses its discretion when it makes a determination 

that is “„“arbitrary, capricious, or patently absurd.”‟” (In re Mark V. (1986) 177 

Cal.App.3d 754, 759, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) 

As noted above, Mother utterly failed to protect Ashley from what the juvenile 

court described as “horrendous sexual abuse.” As disturbing as Father‟s conduct was, 

Mother‟s response to it was equally abhorrent: A withholding of the love, comfort and 

support that any child would need to begin to heal the painful wounds inflicted by her 

father‟s betrayal of the parent/child relationship. The court acted well within its 

discretion in removing Douglas from Mother‟s custody.
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V. DISPOSITION

The orders under review are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KUMAR, J.*

We concur:

TURNER, P. J.

MOSK, J.

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.