Filed 4/29/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In the Matter of K.R., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
A.C. and V.R.,

Real Parties in Interest. No. B247519
(Super. Ct. No. CK93144)

ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed here in on April 25, 2013 , be modified as
follows. On page 9, third full paragraph, after the first sentence, omit the rest of the text on that page beginning with In In re David R. and the first word “Mor eover,” on page 10. That paragraph should now read:2 The juvenile court’s distinction betw een a stepdaughter and a biological daughter is contrary to the holdings and language of the cases that suggest sexual
abuse of one child in the hous ehold puts at risk other child ren in the household. As one authority has written, “‘Incest,’ as used herein en compasses not only sexual relations between a child and a biological parent, but also between a child and an adult who has assumed a parenting role to wards the child, whether that adult is
married or cohabits with the ch ild’s parent. . . .” (Wilson, The Cradle Of Abuse: Evaluating the Danger Posed By A Sexua lly Predatory Parent To The Victim’s Siblings (2002) 51 Emory L.J. 241, fn. 1.) Thus, the grounds specified by the juvenile court did not support its decision to dismiss the petition as to K.R., and
there was no other evidence supporting that decision. No change in judgment.

MOSK, J. TURNER, P. J.Filed 4/25/13 (unmodified version) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In the Matter of K.R., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
A.C. and V.R.,

Real Parties in Interest. No. B247519
(Super. Ct. No. CK93144)

ORIGINAL PROCEEDING. Petition fo r Extraordinary Writ. Mark A. Borenstein, Juvenile Court Judge. Petition granted. John F. Krattli, County Counsel, Ja mes M. Owens, Assistant County Counsel, David Saft, Principal Deputy County Counsel, Kimberly A . Roura, Senior Associate County Counsel, for Petitioner. Law Office of Alex Iglesias, Sonia Salaza r, for Real Party in Interest, Father V.R. Law Office of Marlene Furth, Jessica Morg an, for Real Party in Interest, Mother
A.C.2 INTRODUCTION
Petitioner Department of Family and Child ren’s Services (DCFS) seeks a writ of mandate to set aside respondent juvenile court’s order dism issing a petition under
Welfare and Institutions Code 1 section 300, subdivisions (a), (b) and (j) as to 10-year-old female K.R., despite the respondent’s finding th at real party in interest, her father V.R., sexually abused her elder half sister, N.C., fo r five years, including at the same age that
K.R. is now. Because we hold that the tr ial court erred in dismissing the petition, we grant the petition for writ of mandate.

BACKGROUND In 2012, DCFS received a referral alleging past sexual abuse of N.C. by father. N.C. reported that father had sexually a bused her by inappropriate touching when she was about seven or eight years old until sh e was about 12 years old—which was about five or six years prior to the filing of the petition. Father would tell N.C., “Don’t tell your
mom. It’s our little secret.” N.C.’s mother started dating fa ther when N.C. was four or five years old, and father moved in with th em. In 2002, when N.C. was about seven or eight years old, K.R. was born to mother and father. It was around that time, father’s sexual molestation of N.C. began. The abuse occurred at night while mother was at work and N.C. was alone with father. N.C.’s bed was in the living room, a nd father would sit next to her on the bed watching television and put his hand inside her pants, touching he r vagina. Father repeatedly orally copulated N. C. When these events occurre d, K.R. was on the premises, as was a babysitter. On one occasion, K.R. may have seen the ab use taking place. When N.C. was about 12 years old, sh e told her mother about the sexual molestation. According to N. C., mother tried to expel fath er from the house, but father

1 All statutory references are to the We lfare and Institutions Code unless otherwise indicated.3 threatened to take K.R. away. Mother did put locks on doors to stop the abuse. N.C. has now expressed concern that father would se xually abuse K.R., a physically maturing child; N.C. noted that father would “showe r or bathe” K.R., which N.C. considers
“weird.” DCFS filed a section 300 pe tition on behalf of N.C. a nd K.R., asserting counts under section 300, subdivisions (b), (d) a nd (j), and setting forth the allegations of father’s sexual abuse of N.C. The juvenile court found a prima facie case and ordered the
children removed from father and released to mother. The juvenile court ordered monitored visits and telephone calls for father with K.R., but no contact between father
and N.C. After initial denials, mother admitted that N.C. disclosed the sexual abuse to her when N.C. was 13 years old. Mother said sh e put locks on the doors , took father’s keys to the rooms away, and was more vigilant about not leaving the childre n alone with father if the babysitter was not there. Mother also said she remained with father after N.C.’s
disclosure because of economic reasons, as father paid ha lf the rent and other costs. DCFS recommended that father attend pa renting and sexual abuse treatment classes, and that mother attend parenti ng and sexual abuse awareness classes for nonoffending parents. In a last-minute re port for the March 12, 2013, hearing, DCFS reported that father enrolled in a 52-week program for sex offenders in Fresno, California, in which city he worked. Mo ther was in a sexual abuse awareness group through the family preservation program. Because N.C. had turned 18 in 2013, DCFS recommended she be dismissed from the section 300 petition. DCFS further recomme nded that the court take jurisdiction over K.R., and monitor father’s progress and the risk to K.R. as father began the program for sexual abuse perpetrators. DCFS continued he lping mother with services for K.R. and
with funds for the fa mily’s housing. At the adjudication hearing, N.C. testified about the fath er’s sexual abuse of her.
Father denied the sexual abuse. K.R. testif ied that father never inappropriately touched
her and that she liked father. Mother testif ied that her relationship with father began4 about 14 years ago and ended about March 20 12 because father had harmed N.C. She testified she was informed about the abuse year s earlier and had put “l ocks on the door to protect” N.C., but later testified that she did not know about the abuse until March of
2012. The juvenile court found by a preponderance of the evidence that father sexually abused N.C., father’s denials were not “cre dible,” N.C.’s demea nor in the forensic interview supported her credib ility, K.R. and a babysitter were in the home at least some
of the time that the abuse of N. C. took place, and N.C. had to ld mother about the abuse. The juvenile court dismissed N.C. from the section 300 petition becau se she had turned 18 and found that K.R., “beautiful as she is,” was differently situated from N.C. because K.R. was father’s biological daughter and hi s sexual abuse of N.C. did not put K.R. at risk for sexual abuse. The juvenile court al so observed that the last incident of sexual abuse of N.C. occurred six years earlier. Co nsequently, the juvenile court dismissed the petition in its entirety. DCFS promptly filed a petition for a wr it of mandate contending that the respondent juvenile court erre d in dismissing the section 30 0 petition as to K.R. This court immediately stayed respondent juvenile court’s order dismissing the petition as to K.R, and directed that the detention and vi sitation orders be continued pending further
order of this court. This court then issued an alternative writ of mandate directing the respondent juvenile court to confer with th e parties and vacate it s March 13, 2013, order dismissing the petition as to K.R., or alternat ively to show cause why a peremptory writ ordering respondent to do so should not issue. On April 4, 2013, the re spondent juvenile court held the hearing directed by the writ and filed a return. The juvenile court, in explaining its reasons for not changing its prior decision, said that without new evidence, DCFS did not establish by a preponderance of the evidence that K.R. was at substantial risk of future harm from father. Accordingly, the show cause proc eeding went forward before this court.5 DISCUSSION

A. Standard of Review A juvenile court’s jurisdictional findings are reviewed for substantial evidence. ( In re David M. (2005) 134 Cal.App.4th 822, 828.) Ge nerally, “[w]e review the record to determine whether there is any substantial evidence to support th e juvenile court’s conclusions, and we resolve all conflicts a nd make all reasonable inferences from the evidence to uphold the court’s orders, if possible. ( In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393 [32 Cal.Rptr.3d 526].) ‘Howeve r, substantial evidence is not synonymous with any evidence. [Citations.] A decisi on supported by a mere scintilla of
evidence need not be a ffirmed on appeal. [Citation.] Fu rthermore, “[w]hile substantial evidence may consist of inferences, such infe rences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].” [Citation.] “The ultimate
test is whether it is reasonable for a trier of fa ct to make the ruling in question in light of the whole record.” [Citation.]’ ( Id. at pp. 1393-1394.)” ( In re David M., supra, 134 Cal.App.4th at p. 828.) DCFS has “the bur den to prove the ‘jurisdictional facts by a preponderance of the evidence.’” ( In re Drake M. (2012) 211 Cal.App. 4th 754, 768; see
In re D.C. (2011) 195 Cal.App.4t h 1010, 1014.)
A court has said that when the trier of fact has concluded that the party with the burden of proof did not carry the burden and that party ap peals, “it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. ( In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) “Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence comp els a finding in favor of the appe llant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of su ch a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’6 [Citation].” ( Id. at p. 1528.) Nevertheless, courts in this situation ha ve still employed the
test of whether there is substa ntial evidence that supports the determination of the trier of fact. (See In re Roberto C. (2012) 209 Cal.App.4th 1241, 1254.) Regardless of the applicable standard of re view, we conclude that th e juvenile court erred.

B. There Was Jurisdiction
Jurisdiction over a child under section 300 may be based on there being “a
substantial risk that a child w ill suffer[] serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child” (subd. (b)); if “there is a substantial risk th at the child will be sexually abused, as defined by section 11165.1 of the Penal Code, 2 by his or her parent or guardian or a member of his or her household” (subd. (d)); or if the “child’s sibling has been abused or neglected,
as defined in subdivisions [(b) or (d)], and there is a substa ntial risk that the child will be abused or neglected, as defined in those subdivisions” (subd. (j)). We conclude that the juvenile court erre d in dismissing the se ction 300 petition as
to K.R. because the evid ence established that she was at risk for sexual abuse by father. Therefore, the juvenile court should have sustained the petiti on as to K.R., rather than
dismiss it.

2 Penal Code section 11165.1 states, “[a]s us ed in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following: ( a) ‘Sexual assault’ means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 26 1.5 (statutory rape), 264.1 (ra pe in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragr aph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), 288a (oral copulation), 289 (sexual penetration ), or 647.6 (child molestation). [¶] (b) Conduct described as ‘sexual assault’ includes, but is not limited to, . . . (2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person; . . . (4 ) The intentional touching of the genitals or intimate parts (including the brea sts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perp etrator by a child, for purposes of sexual arousal or gratification, ex cept that, it does not include acts which may reasonably be construed to be normal caretaker responsibilitie s; interactions with, or demonstrations of affection fo r, the child; or acts performed for a valid medical purpose.”7 Cases overwhelmingly hold that sexual ab use of one child constitutes substantial
evidence of a risk to another child in the household—even to a sibling of a different sex 3 or age or to a half sibling. ( In re Andy G. (2010) 183 Cal.App.4th 1405 [two-year-old boy at risk because father sexually abused the boy’s 12-year-old and 14-year-old half sisters]; In re P.A. (2006) 144 Cal.App.4th 1339 [sex ual abuse of daughter could be found to pose risk of sexual abuse to younger brothers]; In re Karen R. (2001) 95 Cal.App.4th 84, 91 [rape of 13-year-old daug hter reasonably could be found “to be so sexually aberrant” that both male and female children siblings of the victim are at substantial risk of sexual abuse]; In re Rubisela E. (2000) 85 Cal.App.4th 177 [sexual abuse of 13-year-old daughter supports finding of risk to 9-year-old daughter]; In re
Joshua J. (1995) 39 Cal.App.4th 984 [father who sexually abused a six-month-old boy poses risk of sexual abuse to newborn son]; In re Dorothy I. (1984) 162 Cal.App.3d 1154 [jurisdiction based on a buse of half sister 15 years earlier]; see also In re Marianne R. (1980) 113 Cal.App.3d 423 [in dependency proceeding concer ning daughter, evidence of sexual abuse of stepdaughter by father admissible].)
In In re Ana C. (2012) 204 Cal.App.4th 1317, 1332 , the father had sexually abused the 11-year-old daughter of a cohabitant. The court, in affirming the juvenile court’s decision sustaining allegations und er section 300 of the risk of sexual abuse to the son, said, “In our assessment, [the father’s] cu rrent case most closely fits the model of In re Karen R., supra , 95 Cal.App.4th 84 in that [the fa ther’s] conduct has been ‘so sexually aberrant’ to support the commonsense conclu sion that most every person in the family
home was at risk of sexual abuse.” The court in In re P.A., supra, 144 Cal.App.4th at page 1347, supported its conclusion that th e sexual abuse of a daughter supported an inference that her younger male siblings were at risk of abuse by referring to section 355.1, which provides in part, “(d) Where the court finds that either a parent, a guardian, or any other person who resides with, or ha s the care or custody of, a minor who is currently the subject of the petition filed un der Section 300 (1) has been previously

3 The Supreme Court granted review in conn ection with whether male siblings of sexually abused females are at risk. ( In re I.J. , review granted Sept. 19, 2012, S204622.)8 convicted of sexual abuse as defined in Sectio n 11165.1 of the Penal Code . . . [or] (3) has been found in a prior depe ndency hearing or similar pro ceeding in the corresponding
court of another state to have committed an ac t of sexual abuse, . . . that finding shall be prima facie evidence in any proceeding that the subject minor is a person described by subdivision (a), (b), (c), or (d) of Section 3 00 and is at substantia l risk of abuse or neglect. The prima facie evidence constitu tes a presumption affe cting the burden of producing evidence.” Th e court said that “[a]lthough se ction 355.1, subdivision (d), was not triggered here because there was no prio r dependency proceeding at the time of the jurisdictional hearing, it nonetheless evinces a legislative determination that siblings of sexually abused children are at substantial ri sk of harm and are en titled to protection by the juvenile courts.” ( In re P.A., supra, 144 Cal.App.4th at p. 13 47.) Here, section 355.1 is not directly applicable, but the principl e of protection of children from the risk of
sexual abuse is useful.
In In re Ricky T. (2013) 214 Cal.App.4th 515, th e court held that there was substantial evidence that a grandfather’s crim inal conviction for sexual abuse of stepgranddaughters, which evidence gave rise to the presumption under section 355.1 that his grandson was at a substantial risk of abuse. But the court also followed a “line of cases” that held “‘aberrant sexual behavior by a pare nt places the victim’s siblings who remain
in the home at risk of aberrant sexual behavior. [Citations.]’” ( In re Ricky T., supra, 214 Cal.App.4th at p. 523.) It is true, as stated by the juvenile court, that the cases to wh ich we refer affirmed orders finding jurisdiction and held that there was substan tial evidence to support the juvenile courts’ jurisdiction. Here, the juve nile court found that there was insufficient evidence to support the allegations that K.R. was at risk of abuse. Thus, the issue is whether, as DCFS contends, there was sufficien t evidence to establish those allegations. Undoubtedly, appellate courts have rarely if ever been faced with a situation in which a father sexually molests one female minor in the household and the juvenile court does not
find another female minor in the household to be at risk. The cases cited categorically
state that aberrant sexual behavior directed at one child in the household places other9 children in the household at risk, and this is especially so when both children are females. (See In re Ana C., supra, 204 Cal.App.4th at p. 1332.) The juvenile court’s finding that there has been “time” (about 5 to 6 years) since father last abused his stepdaughter N.C., do es not provide sufficien t evidence in support of dismissal as to K.R. (See In re Dorothy I, supra, 162 Cal.App3d at p. 1157.) Father has denied the abuse despite the evidence from N.C. that co nvinced the juvenile court
that father abused her. The trial court fou nd that father’s testimony lacked credibility. Father has not yet completed any sexual ab use education, which he was required to complete. Further, the evidence showed that it was moth er’s installation of locks on the doors and taking father’s key that likely stop ped the abuse, not any change in father’s desire for sex with preteen girls. The changes in the family circumstances ha ve also placed K.R. at greater risk. Currently, father is not living with mother. This places K. R. at greater risk without juvenile court jurisdiction because, absent ju venile court supervision, K.R. could be spending time alone with father away fro m mother’s home, thereby providing greater opportunity for sexual abuse. The object of his predatory actions, N.C., is no longer available to him. N.C. expressed concern th at father might abuse K.R. as she matures physically, observing that he showered and bathed K.R. notwithst anding K.R.’s age. Moreover, the juvenile court found that fath er had extensively se xually abused N.C., beginning when she was seven or eight years ol d and continuing for about five years. K.R. is now 10 years old. The juvenile court’s distinction between a stepdaughter and a biological daughter is contrary to the holdings and language of the cases that suggest sexual abuse of one child in the household puts at risk other children in the household. In In re David R.,

supra, 212 Cal.App.4th at pa ge 580, a father had fondled hi s daughter. The court, while saying that although the father’s conduct wa s abhorrent, concluded that such conduct was
not sufficient evidence to support an inference that a son was at risk of being sexually
abused. But the court stated that “where a fema le child is the initial victim of abuse, ‘the abuser likely will prey upon other female children in the household . . . . [Citation.]’ . . .”10 Moreover, as one authority has written, “‘In cest,’ as used herein encompasses not only sexual relations between a child and a biologica l parent, but also between a child and an adult who has assumed a parentin g role towards the child, whethe r that adult is married or cohabits with the child’s parent. . . .” (Wilson, The Cradle Of Abuse: Evaluating the Danger Posed By A Sexually Predator y Parent To The Victim’s Siblings (2002) 51 Emory L.J. 241, fn. 1.) Thus , the grounds specified by the j uvenile court did not support its decision to dismiss the petition as to K.R ., and there was no othe r evidence supporting
that decision.

DISPOSITION

The court issues a peremptory writ of manda te directing respondent court to vacate its March 13, 2013, order dismis sing the petition as to K.R. un der section 300, and enter a new order sustaining th e petition as to K.R.
CERTIFIED FOR PUBLICATION

MOSK, J.
We concur:

TURNER, P.J.

O’NEILL, J. 

 Judge of the Superior Court of the County of Ventura ap pointed by the Chief Justice pursuant to article VI, sect ion 6 of the California Constitution.