Opinion
A165313
09-07-2023
In re Q.P., a Person Coming Under the Juvenile Court Law. v. Q.P., Defendant and Appellant. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Contra Costa County Sup. Ct. No. MSJ2100562
Petrou, J.
This juvenile dependency proceeding concerns Q.P. (the child), whose parents are Q.P. (Father) and V.T. (Mother). Father appeals from an order denying his Welfare and Institutions Code section 388 petition and a custody order and final judgment (one document) dismissing the dependency proceeding, granting Mother sole legal and physical custody, and denying Father visitation.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Father does not challenge the termination of dependency jurisdiction or the custody order in favor of Mother. He seeks reversal based on two rulings: (1) denial of his section 388 petition; and (2) denial of visitation. We affirm.
Background
Alameda County Juvenile Dependency Proceedings
Father and Mother are the parents of the child, born in July 2013. In 2015 the juvenile court (Alameda County Superior Court) granted Father legal and primary physical custody of the two-year-old child, with visitation to Mother.
On November 24, 2021, a petition under section 300 was filed asking the court to find the then eight-year-old child came within its jurisdiction under subdivision (b) (failure to protect) and subdivision (d) (sexual abuse). The petition alleged, in pertinent part, that Father punched the child in the stomach in public after she refused to steal toys at a retail store (November 5, 2021); Father wanted the child to steal a basket at a retail store and then, while under the influence of alcohol, drove his car with the child inside (November 14, 2021); and Father "sexually touched" the child on more than one occasion and warned her not to tell anyone or he would hit her.
The petition included a description of two sexual abuse incidents. One incident occurred when the child was approximately six years old; Father touched the child where she" 'goes pee'" and placed his hand under her pants on her "vagina" for approximately three minutes. Another time (child's age unspecified), Father placed his hands under the child's shirt, causing her to feel very uncomfortable.
At a November 29, 2021 detention hearing the court made the following orders: pending further disposition, the child was temporarily released to Mother's custody; there was to be no contact between Father and the child; the case was not to be discussed with or around the child; and a detriment finding was made.
Following a December 21, 2021 combined jurisdiction and disposition hearing, the child was adjudged a court dependent based on a finding that the petition's allegations against Father were true. The child was removed from Father's physical custody and Mother was granted physical custody with family maintenance services. The agency was granted discretion to offer "informal" child welfare services to Father, who was "not entitled to reunification services." The case was transferred for further proceedings to Contra Costa County based on mother's residence in that county.
Contra Costa County Juvenile Dependency Proceedings
In early 2022, the Contra Costa County Superior Court (hereafter the juvenile court) accepted transfer of the case and directed the Contra Costa County Children and Family Services (hereafter the Agency) to provide a case plan for Father. A "family maintenance" review hearing was scheduled for May.
All further dates occurred in 2022.
Father's Section 388 Petition and Agency's Response
On March 30, Father filed a section 388 petition seeking to vacate the Alameda County Superior Court's detriment finding on the basis that it prevented him from being able to comply with the family therapy component of his case plan. In support of the requested relief, Father averred that since the detriment finding he had participated in services, including parenting education, and requested a referral for anger management services. He asserted a change in the detriment finding would benefit the child because family therapy would allow Father to reestablish an appropriate relationship with the child, who was having a difficult time (emotionally) being out of his care according to the Alameda County disposition report.
The Agency social worker informed the court that the child, then living with her mother, would like supervised visits with Father but did not want to be alone with him, have overnight visits with him, or return to his custody. The Agency social worker also reported that Father denied he had ever physically or sexually abused the child. And Mother denied reporting the child was having emotional difficulty after being removed from Father's care.
The Agency social worker provided the following information from the child's therapist. The child was currently participating in time-limited therapeutic intervention and would be "graduating" from the program at the end of April. The child had some fear about seeing Father "but no major concerns have been identified." The Agency social worker noted there was a waitlist for therapeutic visits and the Agency could not move forward with those visits with the current detriment finding in place. The Agency believed therapeutic visits "are reasonable as long as the behavioral health professionals deem the visits appropriate."
Hearing on Father's Section 388 Petition
On April 28, the juvenile court convened a hearing to consider Father's section 388 petition. The court noted it was being asked to vacate a detriment finding subject to the opinion of the child's therapist that it would be in the best interest of the child, but the therapist had merely said "no major concerns had been identified" and the child had "some fear" about seeing Father. The court had no idea what the therapist meant, but clearly absent was any statement from a therapist that it was in the child's best interest to have therapeutic visits with Father.
The court referenced the Alameda County Superior Court findings that Father had punched the child in the stomach for refusing to shoplift and had "touched her private parts under her clothing." Given those sustained allegations and the information before it, the court found no basis to change the detriment finding. The court noted that it "may be" in the child's best interest to work at resuming a relationship with Father so long as it was done safely and in a manner that did not further traumatize the child.
After further argument, the court indicated it was not then prepared to vacate the detriment finding. The court acknowledged father had been attending at least some parenting classes and had requested a referral for anger management services and that the child had expressed interest in supervised visits. However, neither father's participation in services nor the child's interest in supervised visits addressed the court's prime concern, i.e., the sustained finding of child molestation. Because there had been no sex offender treatment or other treatment addressing that sustained finding, the court would not vacate the detriment finding until it had received an opinion from a mental health professional that it would be in the child's best interest to allow contact and visits.
The court continued Father's section 388 petition to the family maintenance review scheduled for May 12. In the interim, the court requested the Agency social worker obtain from the child's therapist a specific recommendation as to whether supervised or therapeutic visits would be in the child's best interest and could be accomplished in a safe manner.
Agency's Report for Family Maintenance Review
Before the May 12 hearing, the Agency filed its family maintenance review report, recommending the juvenile court dismiss the dependency and grant sole legal and physical custody to Mother. Issues that led to the dependency had been addressed in that the child had no contact with Father since November 2021 (due to no contact and detriment finding made by Alameda County Superior Court), Mother ensured the child attended therapy, and there was no current safety threat to the child's health or wellbeing in Mother's care.
The Agency social worker reported Father believed Mother coached the child to claim that Father had abused the child. Father denied any substance abuse issues even after he was convicted of a DUI and had been described in other reports as appearing intoxicated. He was adamant that he had never sexually abused the child. He also denied physically abusing the child even though there was video (store security camera) of him hitting the child. Father had participated in some services (fatherhood group and parent education); he had been referred for anger management, but the agency had not received any verification of his participation.
The Agency social worker reported on the positions of the parties and the child's therapist vis-a-vis visits between Father and the child. Mother was amenable to the child having a relationship with Father in the future but was not currently open to any type of unsupervised visits. The child wanted to "eventually" see Father in a supervised setting but did not want to be alone with Father and did not want to live with him. While Father wanted to participate in therapeutic visits with the child, the clinical team that provided such visits declined the referral because "due to the substantiated allegations of sexual abuse . . . [such therapy] is contraindicated based on the model we use for therapeutic visitation."
The child's therapist reported the child had graduated from the therapeutic intervention program, having attended from December 2021 through April 2022. The child had made good progress in the program and Mother had been responsive and engaged. While the therapist did not feel it would be detrimental to the child to have supervised visits with Father, the therapist did not explicitly say it would be to the child's benefit to see Father. The therapist also noted "some fear from [the child] about seeing . . . [Father] in person."
The Agency social worker concluded that while the parties (Mother, Father, and the child) were interested in some form of visitation, the Agency did not have sufficient evidence that visits of any kind would be in the child's best interest.
Continued Hearing on Father's Section 388 Petition and Hearing on Family Maintenance Review
At the May 12 hearing, the juvenile court further considered Father's section 388 petition. It also admitted into evidence the Agency's report for the family maintenance review and considered counsel's arguments; the parties presented no witnesses.
The juvenile court explained its reasons for denying Father's section 388 petition as follows:
"One, I do have findings from the Alameda County Court that the allegations relating both to physical abuse and sexual abuse of the child are true, and I do have concerns about ordering therapeutic visitation without a therapist indicating to me that that would be in the child's best interests.
"I do understand that [Father] denies the allegations. However, looking at all the evidence that is before me, first of all, I have the sustained findings by another court, and so, that resolves the issue of whether they're true or not.
"But I have the father denying that he did any of these things. Yet, there, apparently, are witnesses from the stores who saw him punch his daughter and video of that. And [Father] says that the . . . independent witnesses are lying. I don't know what he says about the video.
"But on balance, starting from the premise that the allegations are true, given that, I do not think it is safe to lift the detriment finding under those circumstances, unless the issue of sexual offending is addressed. And in my view, it hasn't been adequately addressed by a parenting class and an anger management class."
The court left the detriment finding in place because there were no changed circumstances that would justify vacating that finding.
The juvenile court dismissed the dependency, awarded Mother sole legal and physical custody of the child, and entered an exit order denying Father visitation. In its May 12 Judicial Council form custody order and final judgment (one document), the juvenile court included an attachment stating that Father had been denied visits based on his failure to complete parenting classes and the Alameda County Superior Court's finding that visits would be detrimental to the child based on sustained allegations of Father's abuse of the child.
Father's timely appeal ensued.
Discussion
I. Juvenile Court Did Not Abuse Its Discretion in Denying Father's Section 388 Petition
The applicable law is well settled. "A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both' "a legitimate change of circumstances"' and that undoing the prior order would be in the best interest of the child. [Citation.] The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion." (In re S.J. (2008) 167 Cal.App.4th 953, 959-960.)
In challenging the denial of his section 388 petition, Father argues the juvenile court should have vacated the detriment finding based on evidence of changed circumstances, namely Father's request for referral and participation in services, his request for therapeutic visits, and certain isolated statements made by the child, the child's therapist, and the Agency social worker. He also argues the weight of the evidence before the court.
Father misconstrues the nature of our appellate review. We do not review the record for substantial evidence in support of a finding in Father's favor, as he suggests. Instead, when a court has made a custody determination in a dependency proceeding, we do not upset that decision unless the trial court's decision was capricious, arbitrary, or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Here, the court's decision was anything but absurd as the services Father received were both limited and not focused on addressing the very serious circumstances that lead to the juvenile court's intervention in the first instance (physical and sexual abuse of the child). Additionally, the juvenile court appropriately placed special significance on Father's failure to present any evidence - by way of an affirmative opinion from the child's therapist - that it would be in the child's best interest to vacate the detriment finding and order visitation.
In light of the evidence supporting the court's decision that it could not find visitation to be in the child's best interest, we need not address whether Father demonstrated any new or changed circumstances. As we cannot say the juvenile court's decision to deny visitation to Father was arbitrary or capricious, we find the court acted well within its discretion and uphold the denial of Father's section 388 petition.
II. Juvenile Court Did Not Abuse Its Discretion In Issuing An Exit Order Denying Father Visitation
Here too the applicable law is well settled. When terminating its jurisdiction in a dependency at a hearing held pursuant to section 364, the juvenile court has broad discretion to issue exit orders concerning custody and visitation (§ 362.4, subd. (a)). On appeal, we review the juvenile court's exit order denying visits for an abuse of discretion. (In re J.M. (2023) 89 Cal.App.5th 95, 113.)
Father argues reversal of the exit order denying visitation is required because "[s]ome contact, even limited contact in a therapeutic setting, was in the child's best interests." He asserts the juvenile court abused its discretion because it "discounted and disregarded the [child's] desires, therapist's opinion, the [child's] own progress in services, and Father's progress and willingness to participate in therapeutic visits." He contends the discounted "facts" were evidence that therapeutic visits were in the child's best interest, and at the same time, there was no evidence that contact was likely to harm the child. We find Father's arguments unavailing.
In making exit orders under section 362.4, the juvenile court's" 'focus and primary consideration must always be the best interests of the child.'" (In re T.S. (2020) 52 Cal.App.5th 503, 513; see In re J.M., supra, 89 Cal.App.5th at p. 113 [in making exit orders under § 362.4 the juvenile court is not required to make a finding of detriment "under any circumstances"].) And, in reviewing the sufficiency of evidence to support the court's challenged finding - that visits would not be in the child's best interest - we "must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813.)
We conclude the record before us demonstrates the juvenile court focused on the child's best interest. Despite the existing detriment finding made by the Alameda County Superior Court, the juvenile court did not just adopt that ruling without change. Rather, the court carefully considered Father's proffered evidence and arguments. (See In re T.S., supra, 52 Cal.App.5th at p. 514 [during § 364 hearing the juvenile court is "empowered to change prior orders" of visitation]; cf. In re Roger S. (1992) 4 Cal.App.4th 25, 30 [during § 364 hearing the juvenile court erred in finding that it was compelled to adopt an existing seven-month-old visitation order without change and in refusing to consider a parent's proffered evidence for a change in the order].) We see no abuse of discretion as the court exercised its discretionary authority to deny visits only after considering all the evidence presented. As an appellate court it is not our role to substitute our judgment for that of the juvenile court.
Father's complaints about comments made by the juvenile court at the conclusion of the May 2022 hearing regarding a potential future request for visits made by Father are unavailing. Once issued, exit orders are transferred to the family court and remain in effect until they are modified or terminated by the family court. (§ 362.4, subds. (b), (c).) The court's reference to a "new section 388 petition" as the way Father might secure visits in the future does not require reversal as this comment in no way reflected an abuse of discretion in denying father visitation.
We note that, like the section 388 petition in a dependency proceeding (In re J.M. (2020) 50 Cal.App.5th 833, 845-846), the family court requires a parent to file a modification petition (Fam. Code, § 3021) to secure a change in a visitation order "if [a parent] can demonstrate 'there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child' [(Welf. & Inst. Code, § 302, subd. (d).)]" (In re Rashad D. (2021) 63 Cal.App.5th 156, 165, fn. 7.)
Finally, we see no merit to Father's argument that the denial of visitation in the exit order will impose an undue burden on him to secure a modification in the family court or otherwise limit the family court's authority to grant visits. As is standard when seeking a visitation modification, Father will be required to show (1) a substantial change of circumstances since the exit order was made, and (2) that the proposed modification would be in the child's best interest. (§ 302, subd. (d).) Father's ability to make the necessary showing and the family court's authority to grant visits are not adversely impacted by the exit order.
Disposition
The May 12, 2022 order denying Father's Welfare and Institutions Code section 388 petition and the May 12, 2022 Judicial Council form custody order and final judgment (one document) are affirmed.
WE CONCUR: Fujisaki, Acting P.J., Rodríguez, J.