Opinion
C082537
05-17-2017
In re G.H. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. G.H., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD236693, JD236694, JD236695)
George H. (father) appeals from the juvenile court's order terminating his family maintenance services. (Welf. & Inst. Code, § 364.) We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
After a contested jurisdiction/disposition hearing on December 30, 2015, the juvenile court found that minors George H., Nicolas H., and Ge.H. were persons described by section 300, ordered them placed in mother's custody under dependent supervision and removed from father's custody, and granted family maintenance services to the parents. The court found, as alleged in the petitions filed by the Sacramento County Department of Health and Human Services (the department), that father had sexually abused the minors' 16-year-old half sibling P.H. (not involved in this case) and that mother failed to recognize the risk father posed to the minors.
On April 18, 2016, father and mother filed section 388 petitions requesting return of custody to both parents, or overnight visitation for father. Father's petition alleged that he had completed sexual abuse offender counseling, parenting education, and family counseling. The petition also submitted a safety plan. The petition attached a report from father's sexual abuse therapist, which alleged that this portion of father's case plan was complete, and letters of recommendation from friends and members of the parents' church.
At argument on the petitions on June 1, 2016, father's counsel conceded that father still did not admit sexually abusing P.H. However, counsel stressed the comments of father's sexual abuse counselor that father had learned to "identify boundary violations by his own mistake, violations of [her] personal[] space, and privacy, such as walking in on his daughter while she was in the shower[,] [i]nappropriate communication styles and relationship boundaries." Father stated: "Your Honor, your court found me guilty or substantiated. [Sic.] Since that ruling, I have done everything that the Court has asked of me."
The juvenile court denied the petitions, finding:
"This is a situation where I see that there has been some level of progress. And I commend [father] for that. The Court found three things true that created a risk of sexual abuse to the [minors].
"There were inappropriate comments between [father] and [P.H.] There was fondling of [P.H.] by [father]. He penetrated her vagina with his penis. His DNA was found mixed with her DNA in her underwear. That's what this case is about. And I have a safety plan that gives me very specific information on how [father] will refrain from making the inappropriate comments, that he's learned in therapy about he and his wife being the executive members of the family and the kids are less[e]r levels and things that get shared at the executive level don't get shared down a level. And I recognize that. So that is some measure of progress. But that's the only measure of progress.
"This case involves [father] specifically being able to identify his own specific risk factors with the personalized plan for preventing abuse in the future. He needs to be able to understand his sexually abusive behavior, his sexual abuse cycle[,] and develop empathy and awareness for his victim. And when I get a report that says he maintains that he did not, in fact, molest his older daughter, he did. That fact has been litigated. That is a true fact. He fondled her. That's a molest. He engag[ed] in penetration. That's a sexual molest. I have many letters from a number of people of the community. These are people that have the ability to prepare the letters that were submitted. I have one from Ms. [M] indicating she is aware of the incident of sexual abuse. This is not one incident we are talking about.
"Most of the other letters don't have anything specific as to whether or not the individuals have an understanding of specifically what the Court has already determined to be true relative to [father]. Comments. Fondling. Penetration. That's what this case is about. And I recognize [father] loves his children immensely. That's clear to me. But he also immensely is a risk to children given his sexually abusive behavior to another child . . . for whom he was involved in a parenting relationship. And that fact that he's identified healthy and appropriate ways of speaking to [and] interacting with his children is a first step in the right direction.
"So the recommendation by the therapist that the Court consider this portion of the case plan to be complete, it's not. When he has engaged in [a] sexual offender program that assists him in recognizing what his risk factors are that led him to engage in fondling his child [P.H.] as well as engaging in penetration, that's when we will have made sufficient progress to warrant unsupervised contact and further discussions regarding being able to move back into the family household. But until he understands his own sexually abusive behavior, the cycle of sexual abuse, and is able to demonstrate empathy and awareness for his victim, then he hasn't done everything that he's been asked to do by the Court.
"So [father] started by saying I'm willing to do whatever it takes to be with my kids. That's what it's going to take. It's really clear. The case plan was clear at the outset, and that's the change in circumstances that's going to be necessary for the Court to find that things are likely to be different.
"So I wish I could be as optimistic as [father] and believe that if he did do it, he learned from his mistake and he won't do it again. But that's just simply not consistent with the knowledge and the information that the Court has regarding the nature of the cycle of sexual abuse and perpetrator and offender behavior.
"So the Court is at this time going to deny the request[,] finding that there has been only a change of circumstance in the one very limited area relative to inappropriate conversations. However, there has not been a change in circumstances regarding the ongoing risk of the fondling and penetration actions and behaviors that have been described."
The department's in-home review report, filed June 3, 2016, recommended continuing mother's family maintenance services, but terminating father's services because he "did not acknowledge and address the sexual abuse that he perpetrated upon his daughter and did not fully benefit from the opportunity to participate in the classes to reunify with his children."
Although father had completed sexual abuse counseling for offenders, he did not benefit from it: He failed to address most of the sessions' specific requirements. Father's therapist stated that providing further services would depend on father's willingness to admit to sexual abuse. The department recommended that father pursue sexual abuse counseling on his own and sign a release for the department to reassess his progress, then file a JV-180 form on completion of such services.
Father had completed parenting education and had attended 11 sessions of individual counseling. Father had enjoyed a liberal visitation schedule, up to five visits a week, and attended church with mother and the minors.
Mother and father felt that he should reunify and move back into the family home. In mother's view, because father had completed his case plan, he had the right to unsupervised visits. The minors also wanted father to return home. They believed P.H. was absent because she was away at college; they had not been told about the sustained allegations against father.
Even though the parents had completed their case plan requirements, the minors were still at risk of future sexual abuse because the parents had not changed their behavior. Since the minors had not been told about the true nature of the allegations against father, their counseling sessions had not addressed sexual abuse and an appropriate safety plan had not been created for them.
On June 15, 2016, father asked for a contested review hearing.
Mother's counsel waived mother's presence for the hearing. However, mother submitted a pretrial statement that endorsed the termination of father's services. Mother was now committed to maintaining separate households permanently, although she would not divorce father or break off contact with him "due to her religious beliefs." Mother agreed with the department that father's failure to admit his sexual abuse of P.H. made it impossible for him to reunify with the minors at this time.
At the contested hearing on July 12, 2016, father called social worker Trina Chaudhary as his only witness. Chaudhary had been assigned to the case for seven to eight months and had seen father monthly during that period.
According to father's sexual abuse therapist, even at or near the end of his sessions, he had not acknowledged committing sexual abuse. Chaudhary had told father several times of her concerns about this fact. When he asked her what else he could do, she had made clear that admitting the abuse was the starting point for progress in counseling. She could not recommend continuing father's services without acknowledgment of the abuse and steps to recovery or relapse prevention.
Chaudhary agreed that creating a safety plan and working on "boundary issues," which father had done, were "steps towards recovery or relapse prevention."
In addition to acknowledging the abuse, father needed to address the issues of "[u]nderstanding sexual abuse, the impact on children, the cycle of sexual abuse, [and] identifying and understanding his specific risk factors." Chaudhary could not recall whether she had discussed these specific points with father, but they were in his case plan. Father had not identified his own specific risk factors because he did not acknowledge that there was a specific risk factor. Although he had discussed "identifying and understanding sexual abusive behavior" with his therapist and had benefited from that discussion, he would "[d]efinitely" have benefited more if he had acknowledged his abuse of his daughter. He could never fully benefit from sexual abuse counseling without doing so.
Chaudhary had discussed with father what he learned from his parenting class; she believed he had benefited from it. She did not know whether he was actively participating in individual therapy, but she believed that so long as he was participating in it he benefited from it. So far as she knew, his conduct during visits with the minors was appropriate, and the minors' caretakers had spoken positively about the visits. Chaudhary did not believe the minors were at risk of sexual abuse during visits, but father's history and the minimal progress he had made in sexual abuse counseling meant that "there would be some risk" to the minors at other times.
The risk of terminating the dependency had been assessed as "very high" based on a tool for assessment used by the department known as SDM (Structured Decision Making); however, the fact that P.H. was not in the household had not been factored into the assessment. With that modification in mind, Chaudhary would assess the risk as "moderate to high." Based on that assessment, she would still not recommend returning the minors to father's care, because he needed to make more progress on the specific topics given to him to cover in counseling. She would recommend moving visits from supervised to "observed."
In a sexual abuse case where the abuser did not admit his conduct, the progress he could make is "minimal." There were no services the department could offer father at this time that had not already been offered.
The department did not recommend terminating the dependency at this time, despite mother's ability to care for the minors, because mother's apparent change of mind toward father and more protective attitude toward the minors had developed very recently, within the last couple of weeks before the hearing. She claimed she had finally changed her mind about father because she had "given him a chance" and it was clear he had not done what he needed to do.
Father's counsel argued in the alternative that the dependency should be terminated or that he should continue to receive services because he had fully participated in the services the department had offered, was willing to do whatever more might be needed, and had maintained a close bond with the minors.
The juvenile court ruled that it would terminate father's services for the following reasons:
"On the issue of the discretionary continued family maintenance services to the father, unfortunately, it's not just whether you attend the classes, but you also must show that you've actually absorbed the information provided in the classes. And that classes have caused to have a meaningful change [sic] that would prevent the recurrence of the issues that led to the Department's request and the Court . . . order to go attend the classes in the first place.
"At this point, I cannot see any value in the continued . . . family maint[enance] services in view of the fact that [father doesn't] believe this even happened. So if [father doesn't] believe there was any sexual assault of the child, then the whole and continuance [sic] of why [he were] to attend the classes do[es]n't make any sense, because [father doesn't] believe [he] did anything wrong.
"So I can't see, unless there was a difference of opinion as to what actually happened in [father's] mind[,] as to how any additional classes would be valuable."
As to mother, the juvenile court retained jurisdiction and continued the minors' placement in her custody, with a review hearing scheduled in 90 days.
After ordering the termination of father's services, the juvenile court added that the termination was "without prejudice if there is additional information that comes in[] through a [section] 388 [petition] that the father . . . has a different position as to his involvement in his issue of the sexual molest of his daughter."
II. DISCUSSION
Father contends the juvenile court abused its discretion by terminating his services. We disagree.
If the juvenile court at disposition orders that a minor remain in the custody of a parent or legal guardian, the court shall also order the parents or guardians to participate in child welfare services or services provided by a court-designated agency. (§ 362, subds. (b), (c); Cal. Rules of Court, rule 5.695(a)(5), (b)(2); In re Pedro Z. (2010) 190 Cal.App.4th 12, 19-20 [family maintenance services, not reunification services].) The court reviews the status of the case every six months thereafter under section 364, to determine whether the dependency should be terminated or continued with further supervision. (§ 364, subd. (c); In re Pedro Z., supra, at p. 20; In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.) When making that determination, the court has discretion to terminate services for one parent while ordering them for the other. (Id. at p. 651.)
Under section 364, the juvenile court has broad discretion to make orders in the child's best interest, including the decision to provide or not to provide services for a parent who is not reunifying with the child, and the reviewing court will not reverse absent a clear abuse of discretion. (In re Gabriel L., supra, 172 Cal.App.4th at p. 652.) The court abuses its discretion if its determination is arbitrary, capricious or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, the issue was clear and simple. The case began because father sexually abused his daughter P.H., thus putting the minors at risk of similar conduct. Father may have reasons for not wanting to admit wrongdoing, and that is his right; but the juvenile court found father poses a risk to the children, and services will not be productive if father denies that finding. The trial court reasoned that so long as father denied the abuse, the minors remained at risk. The undisputed evidence showed father was still in denial at the time of the section 364 hearing. As the court found in ruling on the parents' section 388 petitions, and reiterated at the section 364 hearing, without acknowledgment of wrongdoing, everything else father had done by way of services and visitation was insufficient, and nothing further he might do could change that reality. The court did not preclude father from ever showing that he had recognized the true nature of his conduct; on the contrary, the court expressly made its ruling without prejudice to a future section 388 petition that might demonstrate the required change of circumstances.
In arguing that the juvenile court abused its discretion, father fails to confront the court's full findings. He cites only to the court's written findings and orders, ignoring the court's oral explication of its reasoning. He also fails to mention the court's express ruling that the termination of services was without prejudice to reconsideration under section 388. Father's failure to address the full scope of the court's findings and orders comes near to forfeiting his abuse of discretion claim. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
Father gives an equally incomplete and perfunctory account of the court's findings at the section 388 hearing. --------
In any event, father's claim lacks merit. He correctly points out his accomplishments in terms of services and visitation, and his close bonding with the minors. However, he does not explain why it was arbitrary or capricious for the juvenile court to find those facts less significant than his failure to acknowledge the wrongdoing that precipitated these proceedings, and that continued to put the minors at risk so long as it remained unacknowledged.
III. DISPOSITION
The order terminating father's services is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
MAURO, J.