In re David R.

In re David R. Appeal

Sometimes, California appellate court cases that arise out of what are called Welfare and Institution Code 300 matters and involve abuse or neglect of children can help us understand where the appellate court may lean on such issues if a similar issue arose in a family law case. There is a big difference between these WI 300 matters (as they are called) and family law matters. A different set of laws apply. However, our family lawyers like to look at these decisions (the interesting ones) to get a “feel” for why the appellate court ruled the way it did.

The case of In Re David R. is one of those decisions. We were not involved in any aspect of the case but we found the decision interesting (and a bit disturbing) so we decided to write about it.

In re David R. is an opinion issued by the Second Appellate District of the Court of Appeal on December 31, 2012. This case deals with a child being declared a dependent under WI 300. We have written other articles about California appellate court decisions dealing with a child being declared a dependent and coming under the jurisdiction of the Department of Children and Family Services because of a parents’ drug use issues. This particular case deals with a child coming under the jurisdiction of the Department because of the father’s sexual misconduct and molestation.

The facts of the case are as follows:

David is two years old and lives with his father, his mother and mother’s six year old child, S.G. Father, on one occasion, had molested S.G. by forcing her to masturbate him to ejaculation and fondling her breasts. The court found jurisdiction over both S.G. and David. Father only appealed the order declaring David as a dependent of the court and removing him from the father’s custody.

The court of appeal did not agree with the trial court and reversed its ruling.

The court of appeal started its analysis by referring to Section 300(d) which provides that jurisdiction over a child exists when the child has been sexually abused, or when there is a substantial risk that the child will be sexually abused. The court of appeal noted that the only justification the trial court gave for removing David was the events that happened to S.G. The court of appeal referred to the trial court’s ruling as “mistaken understanding of the law.”

The court of appeal stated that California appellate courts are divided on the question whether a man’s sexual molestation of his minor daughter or stepdaughter is sufficient to support a finding that the male sibling is also at a substantial risk of sexual abuse. The court of appeal found that Department of Children and Family Services did not offer sufficient evidence to show that David was at “substantial risk of sexual abuse” too.

As abhorrent as the father’s behavior was, the court of appeal did not find that conduct would translate to molestation of David. In reaching its conclusion, the court of appeal relied on the following points:

  • Studies on siblings’ risk of sexual abuse by their father have shown that incest with a daughter, without other factors of risk, does not show that the male child is likely to be molested.
  • Other factors, such as the molester’s sexual proclivity must be considered and whether he is an indiscriminate promiscuous adult or a pure incest.
  • Father’s age when he abused the female child and his own sexual abuse when he was a minor; and
  • Comparative sexual development of molested female and male sibling.

The court of appeal concluded that the trial court had applied the wrong standard and reversed its ruling.

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