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Name: In re Carlos T.
Case #: B207604
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 06/03/2009

There was substantial risk of harm to minors who had been sexually abused by their father despite his incarceration. Minors were removed from parents following a rape of the female minor, Linsey, by her father. A permanent plan of guardianship was ordered for the male minor, Carlos, and Linsey remained in foster care. No visitation was ordered. Later, it was discovered that the father had also sexually abused Carlos. A subsequent petition was filed alleging sexual abuse by the father, and failure to protect by the mother. The father was also convicted of several sex offenses against the minors. Just prior to his sentencing, the juvenile court held a jurisdictional hearing on the subsequent petition. The parents moved to dismiss the petition for lack of evidence, since the father had been incarcerated for nearly two years at the time of the hearing. The parents contended that the minors were not currently at risk because the father was incarcerated, and the mother had been participating in therapy to address her failure to protect Linsey. The juvenile court sustained the petition, finding that there was sufficient evidence that the children were at risk because the father was a sexual predator whose acts would have long-term impacts on the minors, and the mother did not show the level of insight necessary to adequately protect them. The parents appealed, contending that there was insufficient evidence that the minors were currently at risk, since the father was incarcerated and neither parent had been allowed to visit for the previous two years. The appellate court rejected the argument. The juvenile court found that the minors were persons described under section 300, subdivisions (b),(d), and (j). A finding of current risk is required for jurisdiction under subdivisions (b) and (j), but not under subdivision (d). Although it was true that the father was incarcerated and had no immediate access to the minors, he had not yet been sentenced nor pursued an appeal. The evidence showed that it was likely that if his conviction were reversed and he were released from custody, the father would continue abusing the minors. Likewise, there was sufficient evidence that the mother continued to avoid accepting responsibility for her failure to protect the children in the past. The court could reasonably find that both children were at substantial risk of abuse.