Filed 5/9/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Petitioner,

v.

THE SUPERIOR COURT OF LOS 

ANGELES COUNTY,

Respondent;

A.C. et al.,

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 herein on April 25, 2013 is modified as follows:

1. The first sentence on page 7 is modified to read as follows, with the 

changes in bold:

Cases overwhelmingly hold that sexual abuse of one child may constitute

substantial evidence of a risk to another child in the household—even to a sibling of a 

different sex or age or to a half sibling. (In re I.J. (2013) __ Cal.4th __; 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 [sexual abuse of daughter could be found to pose risk of sexual abuse to younger 
2

brothers]; In re Karen R. (2001) 95 Cal.App.4th 84, 91 [rape of 13-year-old daughter 

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 abuse of half sister 15 years earlier]; 

see also In re Marianne R. (1980) 113 Cal.App.3d 423 [in dependency proceeding 

concerning daughter, evidence of sexual abuse of stepdaughter by father admissible].) 

2. On page 8, second full paragraph, add the following sentence after the first 

sentence as follows: And the Supreme Court has said that “[i]n 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.” (In re I.J., supra, __ Cal.4th at p. __.) 

No change in judgment.

MOSK, J. TURNER, P. J. O‟NEILL, J.

 

Judge of the Superior Court of the County of Ventura appointed by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
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 herein 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 “Moreover,” on page 10. 

That paragraph should now read:
2

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. As 

one authority has written, “„Incest,‟ as used herein encompasses 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 towards the child, whether that adult is 

married or cohabits with the child‟s parent. . . .” (Wilson, The Cradle Of Abuse: 

Evaluating the Danger Posed By A Sexually 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 for Extraordinary Writ. Mark A. 

Borenstein, Juvenile Court Judge. Petition granted.

John F. Krattli, County Counsel, James 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 Salazar, for Real Party in Interest, Father V.R.

Law Office of Marlene Furth, Jessica Morgan, for Real Party in Interest, Mother 

A.C.
2

INTRODUCTION

Petitioner Department of Family and Children‟s Services (DCFS) seeks a writ of 

mandate to set aside respondent juvenile court‟s order dismissing a petition under 

Welfare and Institutions Code1section 300, subdivisions (a), (b) and (j) as to 10-year-old 

female K.R., despite the respondent‟s finding that real party in interest, her father V.R., 

sexually abused her elder half sister, N.C., for five years, including at the same age that 

K.R. is now. Because we hold that the trial 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 abused her by inappropriate touching when she 

was about seven or eight years old until she 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 father when N.C. was four or 

five years old, and father moved in with them. 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, and father would sit next to her on the bed 

watching television and put his hand inside her pants, touching her vagina. Father 

repeatedly orally copulated N.C. When these events occurred, K.R. was on the premises, 

as was a babysitter. On one occasion, K.R. may have seen the abuse taking place. 

When N.C. was about 12 years old, she told her mother about the sexual 

molestation. According to N.C., mother tried to expel father from the house, but father 

 

1 All statutory references are to the Welfare 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 sexually abuse K.R., a physically maturing 

child; N.C. noted that father would “shower or bathe” K.R., which N.C. considers 

“weird.” 

DCFS filed a section 300 petition on behalf of N.C. and K.R., asserting counts 

under section 300, subdivisions (b), (d) and (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 she put locks on the doors, took father‟s keys 

to the rooms away, and was more vigilant about not leaving the children 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 half the rent and other costs. 

DCFS recommended that father attend parenting and sexual abuse treatment 

classes, and that mother attend parenting and sexual abuse awareness classes for 

nonoffending parents. In a last-minute report 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. Mother 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 recommended 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 helping mother with services for K.R. and 

with funds for the family‟s housing. 

At the adjudication hearing, N.C. testified about the father‟s sexual abuse of her. 

Father denied the sexual abuse. K.R. testified that father never inappropriately touched 

her and that she liked father. Mother testified that her relationship with father began 
4

about 14 years ago and ended about March 2012 because father had harmed N.C. She 

testified she was informed about the abuse years earlier and had put “locks 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 “credible,” N.C.‟s demeanor in the forensic 

interview supported her credibility, 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 told mother about the abuse. 

The juvenile court dismissed N.C. from the section 300 petition because 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 his sexual abuse of N.C. did not put K.R. at 

risk for sexual abuse. The juvenile court also observed that the last incident of sexual 

abuse of N.C. occurred six years earlier. Consequently, the juvenile court dismissed the 

petition in its entirety. 

DCFS promptly filed a petition for a writ of mandate contending that the 

respondent juvenile court erred in dismissing the section 300 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 visitation 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 the parties and vacate its March 13, 2013, order 

dismissing the petition as to K.R., or alternatively to show cause why a peremptory writ 

ordering respondent to do so should not issue. 

On April 4, 2013, the respondent 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 proceeding 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.) Generally, “[w]e review the record to 

determine whether there is any substantial evidence to support the juvenile court‟s 

conclusions, and we resolve all conflicts and 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].) „However, substantial evidence is not 

synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of 

evidence need not be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial 

evidence may consist of inferences, such inferences 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 fact 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 burden 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.4th 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 appeals, “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 compels a finding in favor of the appellant as a matter of law. 

[Citations.] Specifically, the question becomes whether the appellant‟s evidence was (1) 

„uncontradicted and unimpeached‟ and (2) „of such 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 have still employed the

test of whether there is substantial 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 review, we conclude that the 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 will suffer[] serious physical harm or illness, as a result of the 

failure or inability of his or her parent . . . to adequately supervise or protect the child” 

(subd. (b)); if “there is a substantial risk that the child will be sexually abused, as defined 

by section 11165.1 of the Penal Code,2by 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 substantial risk that the child will be 

abused or neglected, as defined in those subdivisions” (subd. (j)).

We conclude that the juvenile court erred in dismissing the section 300 petition as 

to K.R. because the evidence established that she was at risk for sexual abuse by father. 

Therefore, the juvenile court should have sustained the petition as to K.R., rather than 

dismiss it. 

 

2

Penal Code section 11165.1 states, “[a]s used 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 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 

286 (sodomy), subdivision (a) or (b), or paragraph (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 breasts, genital area, groin, inner thighs, and 

buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for 

purposes of sexual arousal or gratification, except that, it does not include acts which may 

reasonably be construed to be normal caretaker responsibilities; interactions with, or 

demonstrations of affection for, the child; or acts performed for a valid medical purpose.”
7

Cases overwhelmingly hold that sexual abuse of one child constitutes substantial 

evidence of a risk to another child in the household—even to a sibling of a different sex3

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 [sexual 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 daughter 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 abuse of half sister 15 years earlier]; see also In re Marianne R. 

(1980) 113 Cal.App.3d 423 [in dependency proceeding concerning 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 under section 300 of the risk of sexual abuse to the son, 

said, “In our assessment, [the father‟s] current case most closely fits the model of In re 

Karen R., supra, 95 Cal.App.4th 84 in that [the father‟s] conduct has been „so sexually 

aberrant‟ to support the commonsense conclusion 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 the 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 has the care or custody of, a minor who is 

currently the subject of the petition filed under Section 300 (1) has been previously 

 

3

The Supreme Court granted review in connection 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 Section 11165.1 of the Penal Code . . . [or] (3) 

has been found in a prior dependency hearing or similar proceeding in the corresponding 

court of another state to have committed an act of sexual abuse, . . . that finding shall be 

prima facie evidence in any proceeding that the subject minor is a person described by 

subdivision (a), (b), (c), or (d) of Section 300 and is at substantial risk of abuse or 

neglect. The prima facie evidence constitutes a presumption affecting the burden of 

producing evidence.” The court said that “[a]lthough section 355.1, subdivision (d), was 

not triggered here because there was no prior dependency proceeding at the time of the 

jurisdictional hearing, it nonetheless evinces a legislative determination that siblings of 

sexually abused children are at substantial risk of harm and are entitled to protection by 

the juvenile courts.” (In re P.A., supra, 144 Cal.App.4th at p. 1347.) Here, section 355.1 

is not directly applicable, but the principle of protection of children from the risk of 

sexual abuse is useful.

In In re Ricky T. (2013) 214 Cal.App.4th 515, the court held that there was 

substantial evidence that a grandfather‟s criminal 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 parent 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 which we refer affirmed 

orders finding jurisdiction and held that there was substantial evidence to support the 

juvenile courts‟ jurisdiction. Here, the juvenile 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 sufficient 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 other 
9

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., does not provide sufficient 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 convinced the juvenile court 

that father abused her. The trial court found that father‟s testimony lacked credibility. 

Father has not yet completed any sexual abuse education, which he was required to 

complete. Further, the evidence showed that it was mother‟s installation of locks on the 

doors and taking father‟s key that likely stopped the abuse, not any change in father‟s 

desire for sex with preteen girls. 

The changes in the family circumstances have 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 juvenile court supervision, K.R. could be 

spending time alone with father away from 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 that father might abuse K.R. as she matures 

physically, observing that he showered and bathed K.R. notwithstanding K.R.‟s age. 

Moreover, the juvenile court found that father had extensively sexually abused N.C., 

beginning when she was seven or eight years old 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 page 580, a father had fondled his daughter. The court, while 

saying that although the father‟s conduct was 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 female 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, “„Incest,‟ as used herein encompasses 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 towards the child, whether that adult is married or 

cohabits with the child‟s parent. . . .” (Wilson, The Cradle Of Abuse: Evaluating the 

Danger Posed By A Sexually 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.

DISPOSITION

The court issues a peremptory writ of mandate directing respondent court to vacate 

its March 13, 2013, order dismissing the petition as to K.R. under section 300, and enter a 

new order sustaining the 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 appointed by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.