Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County Nos. 07CEJ300202-2, 3, Jane A. Cardoza, Judge.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, A.P.J., Cornell, J., and Gomes, J.
R.B. (father) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to his daughter, son, and stepdaughter. He contends the termination order was premised solely on unadjudicated sexual abuse allegations against him and therefore violated his due process rights as well as created a “confession dilemma” which prejudiced him. Father also argues the court unwarrantedly suspended his visitation rights prior to the termination hearing so as to deny him the opportunity to effectively argue he had a beneficial relationship with his children (§ 366.26, subd. (c)(1)(B)(i)). On review, we disagree with each of father’s claims and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In February 2007, the Madera County Superior Court (Madera Court) adjudged father’s six-year-old stepdaughter C.D., four-year-old daughter C.B., and one-year-old son T.B. (collectively, the children) juvenile dependents and removed them from parental custody. Father previously engaged in a physical altercation with his sister in the presence of the children. The family, including the children’s mother, also had a history of homelessness, instability, and leaving their children in the care of relatives with no provision for the children’s support and ensuring their medical needs were met. (§ 300, subd. (b).)
Between the children’s detention in late December 2006 and the February 2007 hearing, their foster parent reported C.B. masturbated while on the toilet and disclosed that father “touched” her. As a result, the social worker generated a suspected child abuse report and arranged for C.B. to undergo a sexual assault medical examination, which yielded no evidence of sexual trauma. However, while supervising visitation between the parents and the children, the social worker had to tell father to stop giving C.B. “wedgies” (pulling her underwear in an upward direction from behind). The social worker also saw petitioner kiss C.B. on the lips for what the social worker perceived as a prolonged period of time.
At its February 2007 dispositional hearing, the Madera Court ordered both parents to participate in a plan of reunification. Father’s plan required him to complete a parenting course as well as participate in substance-abuse related services. The Madera Court also ordered that the two girls be assessed for counseling and set the six-month review hearing for August 2007.
A short time after the dispositional hearing, there was a referral alleging father sexually abused both girls. According to the children’s foster mother, C.B. said father touched her vagina and his stepdaughter C.D. said he hurt her a lot “down there.” C.B. told the social worker that father would insert two fingers in her vagina while she was on the toilet. She simulated his behavior by holding up her right index and middle fingers, thrusting them as if into something and wiggling the fingers. She also told the social worker that while father had his fingers in her vagina, he had his hand in his pants “on his peanuts.” Later, in an interview with a police officer, C.B. said father touched her private parts five times. During the touching, father told her she was a bad girl. C.B. reported the abuse to her mother who agreed it was bad. Father’s stepdaughter refused to be interviewed by the police officer. The child protective services agency in Madera County substantiated the sexual abuse allegations but did not file a subsequent petition (§ 342).
By August 2007, father had only begun to participate in reunification services. In the preceding six months, he had been incarcerated four times, adversely affecting his availability for services and visits. It also appeared the parents had recently moved to Fresno County.
The children meanwhile had been placed with a maternal aunt. The girls were seeing a therapist and a social worker supervised the parents’ weekly visits with the children. According to the supervising social worker, father’s inappropriate behavior had continued during visits. Father once picked C.B. up by his forearm between her legs, and gave her a hard-pressed kiss on the mouth. C.B. later told her aunt that father tried to lick her. In mid-June 2007, C.B. disclosed to her therapist she was afraid father would hurt her private parts. In late July, the aunt reported finding C.B. masturbating in the bathroom with two fingers inserted in her vagina. When the aunt talked to C.B. about her behavior, C.B. stated she missed her daddy.
Madera Court’s August 2007 Status Review Hearing
At a six-month review hearing in August 2007, the Madera Court found each parent received reasonable services but had not made significant progress toward alleviating or mitigating the causes requiring the children’s out-of-home placement. It continued services for the parents and also amended the parents’ case plans. In particular, the Madera Court ordered offender’s sexual abuse counseling for father. It also ordered the dependency case transferred to Fresno County.
The appellate record does not include a reporter’s transcript of this hearing.
Father did not appeal the Madera Court’s orders.
Transfer-In Proceedings
In January 2008, the Fresno County Superior Court (Fresno Court) accepted the case and set it for a 12-month review hearing. In the meantime, it ordered the Fresno County Department of Children and Family Services (department) to offer father and mother parenting classes, domestic violence, mental health and substance abuse assessments and any recommended treatment, and random drug testing. It also ordered no visits between father and the children until the department could assess the appropriateness of such visits.
Although the January 2008 minute order makes no mention of offender’s sexual abuse treatment, it is undisputed that such treatment remained part of father’s case plan.
The children’s therapist later recommended that father have supervised visits and visitation resumed after an approximate six-week hiatus.
12-Month Status Review Report
According to the department’s March 2008 report, father had not complied with his case plan and made minimal progress. He completed at most a parenting course in late 2007. Otherwise, he started substance abuse treatment and anger management/batterer’s intervention in January 2008 and sexual abuse treatment classes in March 2008. Father’s sexual abuse treatment was expected to last 6 to 12 months depending on his progress. Father denied he abused the girls and blamed extended family members for the accusations. Meanwhile, in March 2008, father completed the mental health evaluation and mental health therapy was recommended.
As for visitation, father attended sporadically based on his work schedule. When he did visit, he struggled with obeying a court order not to discuss the case in front of the children. The department meanwhile referred the family for therapeutic visitation. At this point, the department recommended the court terminate reunification services.
Therapeutic visitation entailed a mental health therapist who could intervene and counsel the family while supervising visits.
April 2008 Status Review Hearing
By the time the Fresno Court conducted its status review, there had been many off-the-record discussions and the department agreed to continue services until the court conducted an 18-month review. The department acknowledged that, after the six-month review hearing in Madera County and during the inter-county transition, referrals for services were untimely and thus conceded there had been unreasonable services.
Meanwhile, the parents’ attorneys wanted to either correct or strike a statement at the outset of the department’s status review report. The department had reported:
“On February 26, 2007 [after the dispositional hearing] the Madera County Department of Social Services received a referral alleging sexual abuse of the children [C.D. and C.B.] by [father]. The referral was substantiated for general neglect and sexual abuse. However, a petition was never filed. A Review of Dependency Status hearing was held on August 14, 2007. At this hearing, the court was made aware of the substantiated sexual abuse allegation. Services to address the issue of sexual abuse were incorporated into the case plan. [Parents] were ordered to comply with the case plan.”
The parents’ attorneys objected to the sentence “[a]t this hearing the court was made aware of the substantiated sexual abuse allegation.” After another off-the-record discussion, the parties agreed the sentence should read “[a]t that hearing the Madera court was made aware of a Madera [County Department of Social Services] substantiated sexual abuse referral.”
The court thereafter made findings, including that the extent of father’s progress had been minimal and return of the children to the parents would create a substantial risk of detriment to the children’s safety, protection, or physical or emotional well-being. It then ordered continued out-of-home placement for the children and continued reunification services for the parents as well as set a permanency review hearing for June 2008.
Father did not appeal the Fresno Court’s orders.
18-Month Status Review Report
A problem with the children’s placement arose in the interim and led to their placement in another home. This also resulted in a continuance of the permanency review hearing to September 2008. In its reports for the hearing, the department opined neither parent had sufficiently addressed their mental health issues. Father only began mental health therapy in late July 2008. The department was concerned as well about father’s late start in sexual abuse treatment. In addition, a therapist who had been supervising visits since March 2008 believed the children would be at risk if left unsupervised with the parents. The visitation therapist was also concerned about avoidant behavior demonstrated by the children toward father. Both girls stated they did not want to return to the parents.
September 2008 Hearing
The social worker testified father completed all his court-ordered services except sexual abuse counseling and mental health therapy. A measure of the progress parents make in services relates to their visitation with the children. In this case, the children were not demonstrating comfort with father and their visits remained supervised. Also during the visits, the therapist still had to reprimand the parents as well as intervene between the parents and the children. The children were not responding to the parents’ direction. This spoke to the parents’ ability to care for the children’s safety and well being so as to raise a risk of detriment were the children returned to the parents.
The Fresno Court thereafter found both parents were provided reasonable services but had made only moderate progress. It further found it would be detrimental to return the children to parental custody, terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for each child.
Father then sought this court’s review for the first time, by petitioning for extraordinary writ (Cal. Rules of Court, rule 8.450-8.452). He argued the Fresno Court erred in its reasonable services finding and should have found he substantially completed court-ordered services. In our written opinion, we disagreed and denied his petition for extraordinary writ. (R.B. v. Superior Court, (Dec. 17, 2008, F056162) [nonpub. opn.].)
Section 366.26 Report
In advance of the section 366.26 hearing, the department prepared a “366.26 WIC Report” in which it recommended the court find the children were likely to be adopted and order termination of parental rights. Because the children’s adoptability is undisputed, we need not summarize that evidence here.
The reporting social worker addressed, in relevant part to this appeal, recent visits the children shared with the parents. The parents had been told that unless they made changes in their approach to the children all visits would cease. The parents then appeared to make a more concerted effort to provide structure and reasonable discipline during the visits as well as show affection to the children. Both parents struggled with setting and following rules.
There were several examples of the children avoiding father and verbally responding negatively towards him that indicated the children were not comfortable with father. In response, sometimes father resorted to manipulation by pretending he was crying or putting on a sad face. The children did not display avoidant behaviors with either their mother or the foster parents. Their foster parents also reported the children had definite behavioral problems immediately before and after visits with the parents.
During visits, father was also somewhat overbearing and very physical in his play. He tended to overstimulate the youngest child in situations resulting in him being physically hurt. This had happened more than once and father had been reminded the child was very young and unaware he could get hurt if their play escalated too much.
One time father chased the youngest child throughout the visitation house and the child fell. Father responded by telling him not to run. This caused the child to become confused and frustrated as well as have a tantrum. Then in early January father was roughhousing with his daughter and she was hurt as a result. He responded not by apologizing but by attempting to coerce her into keeping quiet by whispering she would get him into trouble. The mother reacted by commenting it was the child’s fault that she was hurt. The department recommended all visits cease immediately based on the observed attempt by father to coerce his daughter and mother’s failure to protect the child.
On the originally calendared section 366.26 hearing date, the court continued the case for a contested trial in February 2009 at the parents’ request. In the interim, the court issued an order granting the department’s request to suspend visitation. The court thereafter continued the hearing into April 2009. A new adoptive home was sought for the children after their foster parents changed their mind about wanting to adopt. By the April hearing date, the children had been placed together with a new pre-approved risk-adopt family.
Trial
At the April trial, the court heard testimony from each of the girls, the social worker, and the parents. Father’s daughter, C.B., reported the best part about visits with her parents was “we got to play.” The subject of her birthday came up and the child identified adults and peers whom she planned on inviting. She did not mention either of her birth parents. Asked of all the places she had lived, what place would she want to live in, the child did not identify a home with either of her birth parents. She did not remember much about ever living with her birth mother but it would make the child happy to spend the day with her.
The social worker testified about the children’s adoptability and her resulting recommendation to terminate parental rights. She also testified that since visitation had been suspended, the children had not asked to visit the parents. The children also were not distressed or otherwise adversely impacted by the recent lack of visits. In the social worker’s estimation, the children would not benefit from having an ongoing relationship with father. Since she had been assigned the case, father was compliant with the order to visit the children. She could not speak to whether he had visited consistently since the start of the case. However, the quality of father’s visits that she observed was lacking. Although father did his part to engage the children, it was not very well received by the children.
Father testified about his visits with the children. He claimed when he did not work overtime, he regularly and consistently visited them. According to him, he had a lot of mandatory overtime. He also testified there were times when the visits were lacking due to restrictions imposed. He understood the rule against roughhousing and testified he did not like to roughhouse. But the children were rambunctious at times. He thought the children had suffered for not having seen him since visits were suspended in January. He also believed having a parent/child relationship would be better than adoption for the children because they needed stability and he could offer that. In his view, he offered the children stability before these proceedings and could do so for the rest of their lives.
He was not surprised if the children did not want to see him or their mother because the children had not seen them for four months and they were “probably so sick of being bounced around.” He claimed the last time he saw his daughter, she ran and jumped in his arms and did not want to let go. Father also testified it had “never been proven” that he sexually abused the girls. He would never do anything like that.
Following closing arguments, the court found the children adoptable and terminated parental rights.
DISCUSSION
I. The Influence of the Sexual Abuse Allegations
Father contends the sexual abuse allegations against him formed the basis for the order terminating his parental rights. Because those allegations were never adjudicated to be true and judicial findings of parental unfitness or detriment based on those allegations were never made, father claims, based on In re G.S.R. (2008) 159 Cal.App.4th 1202(G.S.R.), that he was deprived of due process. He also contends his refusal to admit the sexual abuse allegations posed a “confession dilemma” under Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.) and led social workers to wrongly conclude the children could not be safely returned to his care and his rights should be terminated. Father’s contentions essentially assume that but for the sexual abuse allegations the children would have been returned to his custody and his rights would not have been terminated.
A.
As a preliminary matter, we seriously question whether father is entitled to this court’s review of these claims given the limited scope of appellate review from a parental rights termination order. (§ 366.26, subd. (l); In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022 – 1023 [All orders issued at a hearing at which a setting order is entered are subject to the bar of section 366.26, subdivision (l)].) Having not previously raised his claims either by appeal or writ petition, father appears to have forfeited his opportunity to complain in this appeal. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) To overcome his forfeiture, he theorizes his claims only emerged at the termination hearing and alternatively argues he was denied due process. As discussed below, we disagree.
B.
Father erroneously creates a straw man argument to fashion his contentions. In claiming the sexual abuse allegations against him formed the basis for the order terminating his parental rights, he relies on the social worker’s testimony at the section 366.26 hearing that “the sexual abuse is very concerning” and “that was a large part of the reason.” He interprets these statements to mean the sexual abuse allegations formed the reason why she recommended the court terminate parental rights. That was not the social worker’s testimony. Father has taken her quoted statements out of context.
Father’s trial counsel asked the social worker whether she believed the children would benefit from having an ongoing relationship with father. When the social worker replied “No, I do not,” counsel asked her to state each fact that supported her opinion. The social worker cited the substantiated sexual abuse allegations, the repeated times that father had to be cautioned on how to interact with the children, the girls’ avoidant behaviors towards father, and the fact that he never accepted responsibility for the alleged sexual abuse. It was in this context -- whether there was a basis for finding termination would be detrimental to the children based on the continuing relationship exception (§ 366.26, subd. (c)(1)(B)(i)) -- that the social worker expressed her concern about the sexual abuse issue.
C.
The social worker recommended the court terminate parental rights at the section 366.26 hearing because the children were adoptable. Her recommendation was consistent with California law. The sole purpose of the section 366.26 hearing is to select and implement one of three permanent plans, termination leading to adoption, guardianship, or long term foster care. (In re Marilyn H. (1993) 5 Cal.4th 295, 303-304.) Once family reunification services are terminated, the department’s focus shifts from monitoring the parents’ progress toward reunification to determining the appropriate placement plan for the child. (Id. at p. 305.) If the dependent child is likely to be adopted, adoption is the norm. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
D.
Father also wrongly claims he completed all court-ordered services by the time of the 18-month review hearing with the exception of sexual abuse treatment. He overlooks the additional evidence that he had not sufficiently addressed his mental health issues, having begun therapy just two months before the 18-month review hearing. Further, he had not made substantive progress in the reunification plan to warrant an order returning custody to him (§ 366.22, subd. (a)). At most, as the Fresno Court found, he made moderate progress.
Father ignores as well his lack of progress in his visits with the children. Visits were so problematic that they required not only supervision but therapeutic supervision for a lengthy period. The children were uncomfortable with him. They were unresponsive to his directions. Father even had to be reprimanded at the visits about his behavior.
E.
To the extent father nevertheless contends his failure to complete sexual abuse treatment within the 18 months could not be held against him because no subsequent petition regarding the sexual abuse allegations was ever filed or litigated, he overlooks the court’s reunification plan for him. Starting from the August 2007 review hearing in the Madera Court, father’s court-ordered reunification plan included offender’s sexual abuse counseling. In other words, it was a condition of the reunification plan that father complete such treatment. Father never challenged that order in the Madera Court, the Fresno Court or this court. Unless the parent succeeds in modifying the plan by order of the juvenile court (§ 388, subd. (a)) or by a reviewing court following direct appeal, the parent has assented to the terms of the plan (In re Julie M. (1999) 69 Cal.App.4th 41, 47), and forfeited any claim otherwise regarding the reunification plan as ordered (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018, citing In re Julie M., supra). Therefore, father is in no position to claim the Fresno Court could not consider his failure to complete sexual abuse treatment since reunification depends on a parent’s substantive progress in the reunification plan. (§ 366.22, subd. (a).)
F.
Father’s reliance on G.S.R. to support his due process argument and Blanca P. to support his confession dilemma argument is also misplaced. The circumstances in both G.S.R. and Blanca P. are so disparate from the facts in this case that they have little or no bearing here.
In G.S.R., supra, 159 Cal.App.4th at pages 1207-1213, a court terminated the rights of a “nonoffending” parent, that is a parent with whom the child did not reside when the events or conditions arose that brought the child within the court’s dependency jurisdiction and who did not contribute to those events or conditions. Although the court previously made detriment findings against that parent, there had not been a finding of unfitness and there was insufficient evidence to support the detriment findings. At most, it showed the parent’s lack of housing due to poverty. The agency involved, however, never crafted a plan to help the parent obtain affordable housing.
In Blanca P., supra, 45 Cal.App.4th at pages 1748 and 1752,a parent was falsely accused of sexually molesting his child, continually denied being a child molester, and complied with the service plan. Meanwhile the juvenile court proceeded on the erroneous assumption it had been conclusively established that the parent did molest the child. (Id. at pp. 1741-1742, 1759.)
Here it was father’s domestic violence and instability in late 2006 that brought the children within the Madera Court’s jurisdiction. The Madera Court made a finding of parental unfitness against father when in February 2007 it ordered the children removed from parental custody. It is undisputed as well there was substantial evidence to support the Madera Court’s detriment finding in August 2007. The same can be said of the Fresno Court’s detriment findings in April and September 2008. Other than father’s and, previously, mother’s denials, there was no affirmative evidence that father was falsely accused of sexually abusing the girls. In addition, as previously discussed, father did not make substantive progress in the reunification plan. Furthermore, although there was never a judicial finding that father sexually abused one or both of the girls, the Fresno Court, as well as the parties and their counsel, were well aware that no petition alleging sexual abuse had been filed and did not proceed under any misapprehension otherwise.
Under the unique circumstances in this case, the lack of subsequent petition proceedings did not violate father’s due process rights or otherwise result in prejudicial error.
II. Suspension of Visitation
Father argues there was no reason, other than “one isolated visit,” for the court to suspend his visits with the children prior to the section 366.26 hearing. In his view that one visit did not cause detriment to the children. Father also contends the order suspending visitation prevented him from being able to effectively argue that termination would be detrimental to the children on a theory that they shared a beneficial relationship with him (§ 366.26, subd. (c)(1)(B)(i)).
It is true that the department based its request to suspend visits on one “very specific incident” as the social worker described it in her testimony. C.B. fell and hurt her head as a result of father’s “roughhousing.” Rather than apologize to the child or attend to her needs, father attempted to coerce her to be quiet and not get him into trouble.
However, this was not the first time that father’s immature behavior led to one of his children falling or that father acted inappropriately during a visit toward his children. His actions posed a safety issue. Meanwhile, there was evidence that frequently the children were avoidant towards and interacted reluctantly with father. Under all of these circumstances, the court properly could determine the visits were not benefiting the children and therefore suspend visitation pursuant to section 366.26, subdivision (a). Given the Fresno Court’s appropriate exercise of its authority to suspend visitation that is detrimental to the children, we fail to see how it somehow wrongfully denied him the opportunity to present additional evidence regarding his relationship with the children.
We also point out that a parent who asserts that his children would benefit from a continued relationship with him has the burden of proving regular visitation and contact over the course of the children’s dependency (§ 366.26, subd, (c)(1)(B)(i)) as well as establishing a beneficial relationship such that the children would be greatly harmed if rights were terminated (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342). Furthermore, we review the court’s decision rejecting a detriment claim and terminating parental rights for abuse of discretion (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), not substantial evidence as father argues. On review of the record, we find no abuse of discretion.
Father did not regularly visit and maintain contact with his children over the course of their dependency. While the case was in Madera County, father was in and out of jail and did not regularly visit them. Once the case was transferred to Fresno County, father’s visits were sporadic. It was only after the court set the section 366.26 hearing that he visited consistently with the children. Thus, father failed to establish the first prong of the beneficial relationship exception. In addition, no evidence existed prior to the order suspending visitation or thereafter that would have supported a conclusion that the children would be greatly harmed if parental rights were terminated.
DISPOSITION
The order terminating parental rights is affirmed.
Although father’s notice of appeal and appellate briefing assumes he has standing to challenge the termination of parental rights as to his step-daughter, he fails to cite and our research does not disclose any supporting authority.