Opinion
F079225
12-17-2019
In re G.K., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. J.S., Defendant and Appellant.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Fresno, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CEJ300329-1)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Brian M. Arax, Judge. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Fresno, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Smith, J.
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Appellant J.S. is the father of a now 18-year-old daughter, G.K. In a prior appeal, he raised a sufficiency of the evidence challenge to the juvenile court's jurisdictional findings and dispositional order removing her from his custody. We affirmed. On April 29, 2019, the court terminated J.S.'s reunification services because G.K. did not wish to reunify with him, opting instead to participate in extended foster care.
In re G.K. (May 23, 2019, F077686) [nonpub. opn.]). We granted appellant's request that we take judicial notice of appellant's opening brief, filed on January 7, 2019, in In re G.K., case No. F077686. On our own motion, we take judicial notice of the record on appeal filed in this court in In re G.K., as well as our opinion in that case. (Evid. Code, §§ 452, subd. (d); 459.)
J.S. (father) appealed and appellate counsel filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, indicating there were no issues on appeal. We granted father leave to file a letter showing good cause to file a supplemental brief. Father filed a letter, claiming the jurisdictional allegations were untrue and the Fresno County Department of Social Services (department) was negligent in failing to provide G.K. proper medical treatment. We conclude father failed to set forth a good cause showing that an arguable issue of reversible error arose from the April 2019 hearing. (Id. at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
Dependency proceedings in this case stem from a prior child welfare case involving father and G.K. In November 2016, G.K., then 15, reported that father had been physically abusing her since they immigrated to the United States when she was 12. The physical abuse included pulling her hair, slamming her body into walls, punching and hitting her and spitting. He also called her demeaning names. She also disclosed sexual abuse. On or about August 15, 2016, father got on top of her with her clothes on and tried to kiss her on the mouth and grabbed her buttock. She said this happened several times. He also threatened to kill her and her half siblings on or about February 14, 2015, because she reported incidents of domestic violence between father and her stepmother. G.K. observed father hitting her stepmother on several occasions and calling her demeaning names. As a result of the abuse, G.K. was suicidal and self-harming. She was admitted multiple times for psychiatric treatment and diagnosed with posttraumatic stress disorder (PTSD) and major depressive disorder. On those facts, the juvenile court found G.K. suffered serious emotional damage (§ 300, subd. (c)) and in March 2017, placed her with her mother I.K. (mother) and awarded mother sole legal and physical custody. The court prohibited father from having visitation and dismissed the case. Not long after, G.K. was diagnosed with lupus and father obtained a custody order from the Los Angeles Family Court, granting him joint legal and physical custody of G.K. In August 2017, G.K. moved in with father and his wife (stepmother) with mother's permission so G.K. could attend a high school.
In January 2018, G.K. was involuntarily detained while at school. (§ 5150.) She was feeling suicidal because father was pressuring her to sign documents recanting the sexual and physical abuse allegations she made in November 2016. She was also distraught because father and her stepmother fought a lot. She was released from the psychiatric facility to mother who took her to father's house.
Approximately a week after G.K.'s involuntary detention, a social worker from the department met with her at school in the presence of her school counselor and a police officer to determine whether a protective hold was indicated. G.K. stated it was her idea to move back with father because she wanted to attend the local high school and father promised her a car. Her mother agreed with the decision. Initially, father was nice but "turned into the man he was before." She explained he no longer hit her but "mess[ed] her up" emotionally. When asked to specify, she cried hysterically, her lower jaw quivered quickly, and she started to rock back and forth. She said her stepmother told her she got lupus because she made false allegations against father and father tried to force her to sign documents recanting the abuse. If she refused, he raised his fist towards her but did not hit her. When this happened, he gave her money. She said she would be more comfortable in foster care. The police officer placed a protective hold on G.K. based on the prior allegations of sexual and physical abuse and the department placed her in foster care.
In other conversations, G.K. stated father raised his fist to her face anytime they argued and if they were in the car, he slammed his fist into the dashboard. He blamed her for his legal problems related to the prior dependency case and told her she ruined his life. She denied recanting the sexual abuse allegations, affirming everything she said then was true. She said she hated father and wanted him to go to prison. She wanted him "off the streets" because of what he did to her and because he threatened to kill her. He had not recently threatened her directly but told her stepmother he wanted to take her back to Malaysia to "straighten her out," which meant he wanted to beat her until she was "in line with him."
The department filed a dependency petition under section 300, subdivision (b), alleging two counts, one as to each parent (count b-1 and count b-2), that G.K. was at a substantial risk of suffering serious physical harm. As factual support under count b-1, the petition alleged mother had reason to know that G.K. was being exposed to domestic violence but failed to intervene. The petition alleged under count b-2 that father exposed G.K. to domestic violence; that on January 19, 2018, G.K. was making suicidal statements due to emotional and verbal abuse by father, which resulted in her being involuntarily detained; and that on January 25, 2018, G.K. disclosed to the department that father and her stepmother fought a lot and when she intervened, her father got mad if she sided with her stepmother or vice versa. In one count under subdivision (c) (count c-1), the petition alleged G.K. was at a substantial risk of suffering serious emotional damage, citing as factual support the allegations in count b-2; i.e., her suicidal statements and involuntary detention on January 19, 2018, and exposure to father's arguments with her stepmother. It also alleged father attempted to have her sign documents to recant allegations she made in the past regarding sexual abuse and when she refused, her father would raise his voice and fist towards her and afterwards give her money.
The juvenile court ordered G.K. detained at the detention hearing. Father did not appear, but his court-appointed attorney denied the allegations on his behalf. The court ordered the department to offer the parents and G.K. mental health evaluations and recommended treatment, the parents parenting classes and father a domestic violence assessment and recommended treatment. The court ordered no contact between father and G.K. until further order and set a combined hearing on jurisdiction and disposition for March 5, 2018. In February 2018, G.K. completed a mental health assessment and was referred for therapy.
In its report for the combined hearing, the department recommended the juvenile court sustain the petition and order reunification services for both parents.
The juvenile court continued the combined hearing and at the parents' request set it as a contested hearing for May 30, 2018. The court set a settlement conference for May 16. In the interim, the parents each filed a statement of contested issues, challenging the evidence in support of the jurisdictional findings and listing G.K. as a potential witness.
Prior to the hearing, G.K.'s therapist filed a letter advising the juvenile court against calling G.K. as a witness based on her reaction while discussing it. G.K. told her therapist any discussion concerning father triggered memories of past trauma, which caused her to feel sad and hopeless. As she spoke, she was tearful, and her jaw chattered. The therapist opined testifying would be detrimental to her mental health.
At the settlement conference on May 16, 2018, father's attorney advised the juvenile court father continued to contest the jurisdictional allegations. Mother's attorney, however, indicated she was willing to resolve the jurisdictional issues and forego a contested hearing. She filed a waiver of rights form JV-190, waiving her right to a contested jurisdictional hearing and a JV-195, waiving her right to reunification services. Minor's counsel filed a motion to exclude G.K. from testifying and informed the court that she was doing well in her placement and did not want to reunify with either parent.
On May 21, 2018, the parents appeared at the combined hearing, assisted by a Punjabi interpreter. The juvenile court sustained the b-1 and c-1 counts without conducting a jurisdictional hearing and removed G.K. from parental custody. The court denied mother reunification services based on her waiver (§ 361.5, subd. (b)(14)) and ordered supervised visits for her. The court ordered reunification services for father, continued the no-contact order in effect and set the six-month review hearing for July 2018.
Father appealed from the juvenile court's dispositional order, claiming the court violated his due process rights when it failed to obtain a valid waiver of his right to a contested jurisdictional hearing. He also argued there was insufficient evidence to warrant removing G.K. from his custody. We affirmed, concluding the court failed to obtain a valid waiver of father's right to a contested hearing but that the error was harmless because the evidence supported the jurisdictional allegations. We also concluded substantial evidence supported the removal order.
In July 2018, G.K.'s health had reportedly declined, and she was complaining of pain in her hips. Diagnostic imaging revealed she had avascular necrosis of the femoral heads. She was referred to an orthopedist at Stanford University who recommended hip surgery. The surgery was scheduled for October 2, 2018.
In a "Post Dispo Mediation Results" report dated July 23, 2018, the social worker reported that G.K. was interested in visiting father. He had completed a parenting program in June but did not want to participate in the other services ordered by the juvenile court, i.e., a 52-week child abuser's intervention program and risk assessment, stating he did not need them.
On August 16, 2018, father filed a modification petition under section 388, asking the juvenile court to remove the no-contact order and place G.K. in his care with family maintenance services. The court set the matter for a hearing.
The department recommended against lifting the no-contact order or placing G.K. with father under family maintenance. Although she wanted him to attend her medical appointments, she was not sure she wanted contact with him at other times. Meanwhile, father was uncooperative with the department. He repeatedly stated he was no longer going to participate in any services because he believed the department was misusing its authority and making him participate in unnecessary services. When told G.K. did not want to visit him, he became defensive and insulting and threatened to sue the department and/or involve the news media. The department recommended weekly therapeutically supervised visits except when G.K. was at the hospital.
On September 19, 2018, the juvenile court lifted the no-contact order and ordered father to participate in therapeutically supervised visits with G.K.
Over the next four months, father filed three modification petitions under section 388, all asking for a change in visitation. Meanwhile, the department filed a section 388 petition, asking the court to terminate father's reunification services because he minimally participated and G.K. did not want to reunify with either parent and was interested in extended foster care.
The juvenile court set a six-month review hearing combined with a hearing to rule on father's three section 388 petitions. The court subsequently continued the hearing and combined it with a 12-month review hearing. The combined hearing was continued and conducted on April 29, 2019.
Father appeared with his attorney and was assisted by an interpreter at the combined hearing. County counsel advised the juvenile court the parties had reached an agreement. The department withdrew its section 388 petition and recommended the court find father's progress was minimal and that his services would terminate on G.K.'s birthday in 11 days. Father's attorney advised the court he was withdrawing his request for a contested hearing. Father understood that his services would terminate on G.K.'s birthday and the goal was no longer reunification. He objected to some of the department's recommended findings; specifically, that the department made reasonable efforts to return G.K. to a safe home, that his progress was minimal and that returning her to him would create a substantial risk of detriment to her. He wanted assurance the department would assist her with her medical needs and that she would be able to fulfill her dream of traveling. He also objected to the proposed finding that G.K.'s medical needs were being met. He believed there were issues with the treatment G.K. received.
The juvenile court found father's progress was minimal to moderate, acknowledging his commitment to attending court hearings, engaging in services to some extent and working hard on visitation. The court denied his section 388 petitions as moot and took judicial notice of the entire case file. The court found it would be detrimental to return G.K. to father's custody and the department provided him reasonable reunification services. The court terminated his reunification services effective the date of G.K.'s birthday and set a hearing on October 7, 2019, to review G.K.'s nonminor dependent status.
DISCUSSION
Father contends, as he has throughout these proceedings, that the allegations against him are "completely untrue." He does not specify to which allegations he is referring but we can infer that he is referring to the allegations contained in the dependency petition. He argues the juvenile court did not follow the proper procedure and sustained the allegations not on solid evidence but on the social worker's report, which is not credible. To sustain the allegations based on the social worker's report, he further argues, is "unfair." We conclude there can be no arguable issue as to the juvenile court's jurisdictional findings because, as we explain, the law of the case doctrine bars consideration of it.
Father could also be referring to G.K.'s allegations of sexual abuse, which were substantiated by the department following an administrative action, which father challenged by writ of mandate. The superior court denied the writ of mandate and father filed a notice of appeal on August 14, 2018. His appeal is pending before this court in case No. F077978.
"Under the law of the case doctrine, when an appellate court ' "states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal ...." ' " (People v. Barragan (2004) 32 Cal.4th 236, 246.) In In re G.K., we considered whether the juvenile court erred in foregoing a contested jurisdictional hearing without obtaining father's express waiver. We concluded the court erred, but the error was harmless because substantial evidence supported the jurisdictional allegations. Our conclusion was necessary to the decision and our affirmance of the juvenile court's jurisdictional findings became law of the case.
Although an unpublished appellate court opinion may not be cited, an exception lies where, as here, the opinion is relevant under the law of the case doctrine. (Cal. Rules of Court, rule 8.115(b)(1).) --------
As to whether the department was negligent in overseeing G.K.'s medical care, that is an issue beyond the purview of the juvenile court and unrelated to any of the issues it had to decide. Consequently, there could be no good cause in ordering additional briefing on the issue.
We conclude father has failed to raise any arguable issues on appeal from the juvenile court's April 29, 2019 hearing and dismiss the appeal.
DISPOSITION
The appeal is dismissed.