Opinion
B320399 B326217
07-27-2023
In re Je.P. et al., Persons Coming Under the Juvenile Court Law. v. J.P., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Law Office of Robert McLaughlin and Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Los Angeles County, No. 21CCJP02349, Gabriela H. Shapiro, Judge.
Law Office of Robert McLaughlin and Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Father J.P. (Father) appeals the juvenile court's Welfare and Institutions Code section 362.4 "exit order" restricting him to monitored visitation with his three sons.
All subsequent statutory references are to the Welfare and Institutions Code. "Section 362.4 governs the termination of juvenile court jurisdiction and related orders. The statute authorizes a juvenile court to make 'exit orders' regarding custody and visitation upon terminating dependency jurisdiction over a child.' [Citations]." (In re J.M. (2023) 89 Cal.App.5th 95, 112 (J.M.).)
At the outset of the dependency proceedings underlying this appeal, the juvenile court found true allegations that Father had engaged in prolonged, serious sexual abuse of one of his three daughters. Father does not challenge this finding on appeal, nor does he argue that the court erred in relying in part on the sexual abuse allegations in limiting him to monitored visitation with his daughters. Instead, Father's sole contention on appeal is that the juvenile court abused its discretion by requiring that a monitor supervise his visits with his sons because, as biologically male children, they are not similarly situated to his daughters and do not face a similar risk of sexual abuse. He asks us to reverse the exit order confining him to monitored visitation with his sons.
We conclude, however, that Father forfeited his challenge to the monitored visitation condition by failing to object to the restriction before the juvenile court. We conclude further that- even if considered on the merits-his argument fails in light of the Supreme Court's decision in In re I.J. (2013) 56 Cal.4th 766 (I.J.). We therefore affirm.
FACTUAL AND PROCEDURAL SUMMARY
We limit our summary to the facts and procedural history relevant to our resolution of this appeal.
Father shares six children with J.S. (Mother): three sons- Je.P. (age 14), Er.P. (age 11), and A.P. (age 9)-and three daughters-El.P. (age 13), G.P. (age 8), and Ja.P. (age 6). Prior to the events giving rise to this appeal, Father, Mother, and the children lived together in California City, California, located in Kern County.
For contextual simplicity, we provide here the ages of the children as of the filing of the August 28, 2020 section 300 petitions that initiated the underlying dependency proceedings (discussed post).
A. Section 300 Petitions
On August 5, 2020, the Los Angeles County Sheriff's Department (LASD) responded to a call at Mother's sister's residence in Lancaster, California-where Mother and the children had fled following a "heated argument" between Mother and Father. Mother's sister reported to LASD that Father had sexually assaulted El.P.
During an interview with the responding deputy, El.P. stated that, since 2016, Father had been sexually abusing her on an "ongoing" basis, including by touching her genitals and by forcing her to watch pornography with him. El.P.'s older brother, Je.P., reported to the deputy that El.P. had informed him of the sexual abuse earlier that year. He indicated that he had seen Father walk into El.P.'s room and "a few moments later" would "hear[ ] [El.P.] crying." On these occasions, Je.P. explained that he "would make noise in his room to make [Father] think he was awake so [Father] would stop touching [El.P.]" Er.P. also reported to the deputy that he had seen Father walk into El.P.'s room and would then hear her crying.
The other siblings denied that Father had touched them inappropriately and appeared to be unaware of Father's sexual abuse of El.P. But all six children confirmed that Father physically abused them and physically abused Mother in their presence. The children reported, for example, that Father hit them with a belt, and that he had thrown heavy objects-including a vacuum and a lamp-at Mother, leaving visible marks on her body.
LASD provided a report of its interview findings to the California City Police Department, which conducted its own interviews of Mother and the children. Following the interviews, California City police placed the children into protective custody with the Kern County Department of Human Services (DHS).
On August 28, 2020, DHS filed the six section 300 petitions- one on behalf of each child-giving rise to this case. The petition filed on El.P.'s behalf alleged that Father had been sexually abusing her "since she was about nine or ten years old." Father allegedly "would wake [El.P.] up, have her drink alcohol, . . . make her watch porn[ography], and have her walk around naked." The petition alleged further that Father "touched [El.P.] over her clothing and under her clothing on her vaginal area . . . and breasts," that he "orally copulated her breasts," and that, "on one occasion," he "put his penis in her hands." Finally, the petition included an allegation that Mother had failed to adequately protect El.P. from Father's sexual abuse.
The petitions DHS filed on behalf of El.P.'s siblings alleged that, in light of Father's sexual abuse of El.P., "there [was] a substantial risk that the [siblings] [would] be sexually abused." In addition, all six petitions alleged that the children "[had] suffered, or there [was] a substantial risk that the child[ren] [would] suffer[,] serious physical harm or illness" as a result of the parents' failure to protect them from ongoing domestic violence.
The record does not contain a copy of the section 300 petition filed on behalf of A.P. The record does, however, contain minute orders for the proceedings related to him, including the Kern County juvenile court's findings that "[a]ll counts and specific allegations of the petition filed 08/28/2020 are . . . true."
The Kern County juvenile court detained the children from both parents on the same day DHS filed the petitions.
B. Jurisdiction and Disposition Proceedings
At the January 14, 2021 jurisdictional hearing before the Kern County juvenile court, Father did not dispute the allegations in the petitions, and the court found all the allegations to be true. The Kern County juvenile court subsequently transferred the matter to Los Angeles County, where Mother was residing.
After several continuances due to Indian Child Welfare Act issues, on May 9, 2022, the Los Angeles County juvenile court conducted the disposition hearing. The Los Angeles County Department of Children and Family Services (DCFS) recommended that the court release the children to Mother's custody, citing her participation in therapy and her completion of a parenting education course and sexual abuse awareness program.
Mother, Je.P., and El.P. are registered members of the Rosebud Sioux Tribe, and Er.P., A.P., G.P., and Ja.P. are eligible for membership in the tribe.
With respect to Father, DCFS's reports indicated that the department had received prior child welfare referrals concerning his sexual relationship with an unrelated 14-year-old girl. In addition, the reports reflected that the family had a 2008 DCFS case due to Father's intimate partner violence, and that Father had failed to reunify with Je.P. and El.P. at the conclusion of that case. DCFS therefore requested that the court limit Father's contact with the children to monitored visits "in a neutral setting." DCFS recommended further that the court bypass reunification services for Father "due to the severity, frequency, and age of [El.P.] when [the] sexual abuse occurred."
Although it did not "promote[ ] [the referrals] to a case," DCFS stated that it "believe[d] [the referrals] demonstrate[d] a pattern of behavior."
Counsel for the children agreed with DCFS's recommendations, adding that-notwithstanding Father's completion of a sexual abuse awareness program and other classes-"Father still [could not] articulate why he had to complete such a program or what he [had] learned from the program."
For example, DCFS's June 28, 2021 disposition report reflects that Father stated that, although he believed his programs helped him to improve his levels of patience, he "[did not] know how [the programs were] going to help [him], [and he was] just doing what [he was] being told to do."
Father objected to DCFS's recommendation that the court bypass services, arguing that his completion of various programs and his consistent visitation with the children demonstrated his entitlement to such services. He did not, however, object to the monitored visitation restriction.
The juvenile court found it notable that Father began "participat[ing] in programs without a court order" requiring him to do so, but expressed "concern" that "it appear[ed] . . . Father [had] technical compliance and not substantive compliance in the programs." The court therefore adopted DCFS's recommendation, placing the children with Mother and bypassing reunification services for Father pursuant to section 361.5, subdivisions (b)(6) and (b)(10). The court also restricted Father to monitored visitation with the children. Finally, the court set a section 364 review hearing for November 7, 2022, which eventually went forward on November 28, 2022.
Section 361.5, subdivision (b)(6) provides, in relevant part, that a court need not order reunification services for a parent where the court finds by clear and convincing evidence that the child has been adjudicated a dependent under section 300 "as a result of severe sexual abuse to the child, a sibling, or a half sibling by a parent or guardian." (§ 361.5, subd. (b)(6)(A).) Subdivision (b)(10) provides that the court may deny reunification services to a parent where the court previously "ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent." (§ 361.5, subd. (b)(10)(A).)
Father timely appealed the juvenile court's findings at the disposition hearing.
C. Section 364 Hearing and Exit Order
Following the children's return to Mother's custody, DCFS reported that she "provided the children with exceptional levels of care." (Capitalization omitted.) For example, she "successfully secured her own home in June 2022," which she kept "clean, organized, and stocked" with food and clean clothing for the children. Apart from certain issues relating to Er.P.'s behavior, Mother was "able to provide the children with a stable home environment that [was] free from abuse and neglect." (Capitalization omitted.) She "demonstrated increased insight into her family dynamics and how alcohol abuse [had] affected her life," and was "consistent, positive, and engaging with each of the children." The children expressed to DCFS that they were happy living with Mother, although A.P., G.P., and Ja.P. indicated that they missed Father.
During this time, Mother and Father had no contact with one another, but DCFS reported that Father's visitation schedule with the children included telephone calls every Tuesday and Thursday, monitored by a social worker. Father-who had moved to Fremont, California, to live with paternal grandmother-also visited in person on a monthly basis, subject to his work schedule and the monitoring social worker's availability. DCFS reported that Father's visits appeared to be appropriate, but noted that it appeared Father sometimes had unmonitored phone contact with Je.P., El.P., and Er.P.
At the November 28, 2022 review hearing, DCFS recommended that the juvenile court terminate dependency jurisdiction and issue an exit order granting Mother sole legal and physical custody of the children.
Father objected to closing the case, arguing that the court should maintain its jurisdiction for at least three additional months in light of Er.P.'s behavioral issues, and because an additional review period "[might] allow Father to enjoy more liberalized visitation after jurisdiction is terminated." Father also requested a child and family team meeting to permit DCFS to "work with [him] and identify steps he [could] take towards liberalized visitation." Father did not, however, request that the juvenile court issue an order permitting him unmonitored visitation with the children. Finally, Father requested, in the alternative, that the court send the parties to mediation prior to terminating jurisdiction to allow the parents to identify an appropriate visitation monitor.
The juvenile court overruled Father's objection, finding that it had no basis to maintain jurisdiction. It granted Mother sole legal and physical custody of the children and ordered monitored visitation for Father. In making these determinations, the court explained that it was "relying on the comments of minors' counsel and the social worker's reports," as well as the "very serious," "sustained" allegations against Father in the case. The court, however, stayed termination of its jurisdiction pending completion of a mediation between the parties to select a monitor for Father's visits.
On December 15, 2022, following the parties' mediation, the court filed the exit order reflecting its findings at the November 28, 2022 hearing. The court then terminated its jurisdiction.
Father timely appealed the exit order. We consolidated Father's appeal of the jurisdiction and disposition orders with his appeal of the exit order.
DISCUSSION
Father's sole contention on appeal is that the juvenile court abused its discretion by issuing an exit order that restricts him to monitored visitation with Je.P., Er.P., and A.P. We disagree.
We first address DCFS's contention that Father forfeited this argument by failing to request unmonitored visitation at the November 28, 2022 section 364 hearing. DCFS is correct that Father failed to raise the issue of unmonitored visitation before the juvenile court. The record reflects, at most, that Father indicated to the juvenile court that he might request some form of "more liberalized visitation" with the children in the future. Indeed, Father concedes in his reply brief that, "[a]s [DCFS] correctly asserts, [he] did not formally object to the juvenile court's monitored visitation order." Father therefore forfeited any challenge to the monitored visitation restriction on appeal.(See In re S.B. (2004) 32 Cal.4th 1287, 1293 ["[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] . . . [Citation.] [¶] Dependency matters are not exempt from this rule" (fn. omitted)], superseded by statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.)
We conclude further that Father's failure to request monitored visitation below undercuts his related argument that the juvenile court erred by failing to make an "express finding" on the record that monitored visitation would be in his sons' best interests. Moreover, the record reflects that the court did state on the record the basis for the terms of its exit order-including the restrictions on Father's visitation-explaining that it was "relying on the comments of minors' counsel and the social worker's reports," as well as the "very serious" allegations sustained against Father in the proceedings.
But even had Father properly preserved the issue, his arguments challenging the monitored visitation restriction in the exit order fail on the merits." '[I]n making exit orders, the juvenile court must look at the best interests of the child.' [Citations.] The court must be guided by the totality of the circumstances and issue orders that are in the child's best interests. [Citations.] Because juvenile dependency proceedings arise when children are subject to or at risk of abuse or neglect, '[t]he presumption of parental fitness that underlies custody law in the family court just does not apply....Rather[,] the juvenile court which has been intimately involved in the protection of the child, is best situated to make custody determinations based on the best interests of the child without any preferences or presumptions.' [Citations.]" (J.M., supra, 89 Cal.App.5th at p. 112.)
" '[T]he juvenile court has broad discretion to make custody [and visitation] orders when it terminates jurisdiction in a dependency case [citation].' [Citation.] We review the juvenile court's exit orders for an abuse of that discretion. [Citations.] We will not disturb the juvenile court's decision '" 'unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" [Citation.]" (J.M., supra, 89 Cal.App.5th at pp. 112-113.)
Father contends that the juvenile court abused its discretion in restricting him to monitored visitation with his sons because they are not similarly situated to his daughters. He urges that the boys are not at the same risk of harm from his history of sexual abuse as the girls and that, because he no longer is in a relationship with Mother, he has eliminated any risk of the boys' exposure to domestic violence.
Father, however, does not challenge the juvenile court's findings that he engaged in serious sexual abuse of El.P. over a period of several years while the other children were present in the home. (See I.J., supra, 56 Cal.4th at p. 778 [the father's "serious and prolonged" sexual abuse of his daughter "while the other children were living in the same home" supported the juvenile court's finding that "the risk of abuse was substantial as to all the children"].)
Moreover, Father fails to distinguish our Supreme Court's decision in I.J., which significantly undermines his position. In I.J., the father perpetrated severe sexual abuse on one of his daughters for three years, raping her and forcing her to watch pornographic videos. (I.J., supra, 56 Cal.4th at p. 771.) "There [was] no evidence or claim[, however,] that [the] father sexually abused or otherwise mistreated his three sons, and the evidence indicate[d] that they had not witnessed any of the sexual abuse and were unaware of it." (Ibid.)
The father in I.J. appealed the juvenile court's order declaring all children, including his sons, dependents of the court, arguing that "evidence that he sexually abused his daughter [did] not support the juvenile court's finding that his sons [were] dependents of the court under section 300." (I.J., supra, 56 Cal.4th at p. 772.) The Supreme Court affirmed the juvenile court's determination, explaining:
"For present purposes, we may assume that [the] father's other daughter is at greater risk of sexual abuse than are his sons. But this does not mean the risk to the sons is nonexistent or so insubstantial that the juvenile court may not take steps to protect the sons from that risk....[Citation.] . . . [¶] . . . [Citation.] . . . [W]hen a father severely sexually abuses his own child, the court may assume jurisdiction over, and take steps to protect, the child's siblings." (I.J., supra, 56 Cal.4th at pp. 779-780.)
Although the I.J. court was careful to note that its holding was limited to cases involving "[t]he juvenile court's assumption of jurisdiction under section 300[, which] does not itself mean [a] father will lose all parental rights," we find its analysis instructive here. (I.J., supra, 56 Cal.4th at p. 780.) As in I.J., Father engaged in serious, prolonged sexual abuse of one of his daughters. And as in I.J., the juvenile court issued an order-here, a monitored visitation order-aimed at protecting the children that did not result in Father's loss of all parental rights. We therefore are not persuaded that, in imposing the monitored visitation restriction concerning his sons, the juvenile court erred by relying in part on the finding that Father had sexually abused El.P.
We also find unconvincing Father's contention that, by terminating his relationship with Mother, he has eliminated the risk that unmonitored visitation with him will expose Je.P., Er.P., and A.P. to domestic violence. The record discloses that Father has a history of domestic violence dating back to 2008, that he physically abused the children, and that the children observed Father physically abuse Mother on many occasions. In addition, during the proceedings, Father was unable to articulate what he had learned from his sexual abuse awareness and domestic violence programs, leading the juvenile court to express "concern" that Father had only "technical[ly] compli[ed]" with the programs and had not derived a substantive benefit from his participation.
Accordingly, on this record, we cannot conclude that the juvenile court abused its discretion in restricting Father to monitored visitation with his sons.
DISPOSITION
The juvenile court's jurisdiction, disposition, and exit orders are affirmed.
We concur: CHANEY, J., WEINGART, J.