Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County Super. Ct. No. J514800, Ernest Borunda, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
HALLER, J.
Gregory A., father of 14-year-old Geraldo M., appeals a juvenile court order granting Geraldo's petition for modification under Welfare and Institutions Code section 388 by which Geraldo sought to terminate visits with Gregory. Gregory contends: (1) terminating visits was not in Geraldo's best interests; and (2) Gregory's due process rights were violated because the court's decision was based on the opinion of Geraldo's therapist who did not have complete and accurate information regarding Geraldo's dependency background and history. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2003 Geraldo became a dependent of the juvenile court under section 300, subdivision (b) and was removed from parental custody based on findings Gregory left Geraldo unattended and unsupervised at a fast-food restaurant while Gregory went to Mexico. Gregory had a lengthy criminal history, Child Protective Services referrals involving Geraldo and his sister Elizabeth and mental health issues that included delusional and paranoid thinking.
Throughout the dependency proceedings, the whereabouts of Geraldo's mother were unknown. She is not a party to this appeal.
During the next 12 months, Gregory did not make substantive progress with the requirements of his case plan. The court terminated reunification services and, at a section 366.26 selection and implementation hearing, ordered another planned permanent living arrangement (APPLA) for Geraldo based on his unwillingness to be adopted. (§ 366.26, subd. (c)(1)(B).)
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.)
Geraldo was in his foster home for about two years when the caregivers notified the San Diego County Health and Human Services Agency (Agency) they could no longer care for him. Gregory's whereabouts were unknown and he had stopped visiting Geraldo. Geraldo was doing well in school and participating in therapy to address his anxiety. Agency asked the court to place Geraldo with Vera B., a nonrelative extended family member, in New Hampshire. Geraldo met Vera and wanted to live with her. The court placed Geraldo with Vera and ordered a minimum of three supervised visits a year with Gregory in San Diego, as well as telephone and e-mail contact.
After Geraldo had been living with Vera in New Hampshire for five months, Vera informed Agency's social worker that Geraldo had an episode of severe anxiety just before a scheduled visit with Gregory. Geraldo said he was "stressed out" about the upcoming visit and his poor performance in school "reflected his inner turmoil." During a telephone call with Gregory, Geraldo expressed his anger about past abuse and neglect. Vera reported Geraldo sometimes had difficulty sleeping after talking to Gregory and occasionally did not want to talk to him when he called. Geraldo was afraid Gregory would disrupt his placement with Vera. Vera asked the court to terminate visits and telephone calls between Geraldo and Gregory because they were causing problems for Geraldo at home and school. In the social worker's opinion, contact between Geraldo and Gregory was detrimental to Geraldo.
Neither Geraldo nor his therapist in New Hampshire, Brian Wener, Psy.D., objected to terminating telephone calls from Gregory. Dr. Wener said Geraldo did not seem connected to Gregory and had a lot of disdain for him. Geraldo's posttraumatic stress disorder symptoms had diminished. He was very attached to Vera, who provided him with stability for the first time in his life. Geraldo referred to Vera as "Mom" and wanted her to adopt him.
Geraldo visited Gregory in San Diego in December 2006. The visit did not go well. Geraldo expressed his anger toward Gregory, telling him "I feel crappy every day of my life. I try my best to forget, but I can't. But I am going to make the best of it and get on with my life." Although Geraldo appeared comfortable confronting Gregory about his past, he was frustrated by Gregory's inability or unwillingness to answer questions and provide an explanation.
Geraldo filed a section 388 modification petition, seeking to have the court modify its previous visitation order and instead order no visits with Gregory. As changed circumstances, Geraldo alleged he no longer wanted to see or talk to Gregory because memories of past events made him very angry. Geraldo alleged terminating visits was in his best interests because ongoing contact was detrimental to him and interfered with his progress in therapy. The court granted an evidentiary hearing on the petition and temporarily suspended contact between Geraldo and Gregory pending the hearing.
At the hearing on the section 388 petition, the court received into evidence Agency's reports, Geraldo's psychological evaluation and several letters from Dr. Wener. Dr. Wener testified he had been seeing Geraldo once a week for the past eight months. Vera and the social worker had provided Dr. Wener with background information about Geraldo. Dr. Wener knew about Geraldo's chaotic upbringing and multiple foster care placements. Although Geraldo was not willing to address the nature of his relationship with Gregory, he said Gregory abused and mistreated him and molested his sister Elizabeth. Geraldo had posttraumatic stress disorder, which manifested in nightmares, flashbacks and anxiety. He was making progress in therapy, achieving stability and his symptoms were subsiding.
Geraldo told Dr. Wener he became upset following telephone calls from Gregory. Geraldo wanted no contact with Gregory because their relationship was very troubling to him. In Dr. Wener's opinion, continued contact between Geraldo and Gregory would result in a therapeutic setback for Geraldo.
Geraldo testified he told his attorney, the social worker and Dr. Wener that he wanted no contact with Gregory. He made this decision a few months ago when he had "flashbacks" of some bad things Gregory had done. Geraldo remembered Gregory committed crimes and sexually harassed Elizabeth. When Geraldo tried to talk to Gregory about his sexual impropriety with Elizabeth, Gregory denied it and said Geraldo was crazy. Although Geraldo wanted to maintain contact with Gregory when he first moved to New Hampshire, he testified "times change. I am getting older and understand more stuff I didn't understand months ago."
Gregory testified, denying he committed crimes or tried to molest his daughter. When Geraldo moved to New Hampshire, Gregory maintained contact with him by telephone and e-mail until Vera reported Geraldo was reacting negatively. Gregory claimed he and Geraldo communicated well. Gregory denied calling Geraldo "crazy" when Geraldo confronted him about the sexual abuse allegations. Gregory said, "[m]y son has been abused. He is injured," and was duped "into believing things that are not true." However, Gregory agreed it would serve no purpose "to try to force contact" with him now.
After considering the evidence and hearing argument of counsel, the court granted Geraldo's section 388 petition, finding circumstances had changed in that Geraldo had obtained new insights since moving to New Hampshire, developed a new "mind set" and no longer wanted contact with Gregory. The court further found it was in Geraldo's best interests to terminate visits with Gregory. The court encouraged the parties to monitor the situation in the event Geraldo wanted to resume visits.
DISCUSSION
I
Gregory contends the court erred by granting Geraldo's section 388 petition seeking to terminate visits. He concedes Geraldo showed changed circumstances, but asserts: (1) terminating visits was not in Geraldo's best interests; and (2) Dr. Wener did not have sufficient information to render a valid opinion about whether visits between Gregory and Geraldo should continue.
While this appeal was pending, Agency filed a motion asking us to take judicial notice of the juvenile court's order of September 18, 2007, terminating Gregory's parental rights and to dismiss the appeal as moot because Gregory no longer has a right to visit Geraldo. We granted Agency's request for judicial notice but denied the request to dismiss the appeal as moot because the order terminating parental rights was not yet final. On November 7, 2007, Gregory appealed the order terminating his parental rights (D051977). Until the appeal in that matter is decided and becomes final, the issue of visitation remains viable. Thus, we proceed to address it.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the trial court. (In re Stephanie M., at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47; In re Zachary G. (1999) 77 Cal.App.4th 799, 812.)
B
Geraldo told several people, including his attorney, the social worker and Dr. Wener, that he no longer wanted contact with Gregory because memories of past abuse upset and angered him. The evidence showed telephone conversations between Geraldo and Gregory had a negative effect on Geraldo. In anticipation of a scheduled visit with Gregory in San Diego, Geraldo experienced severe anxiety, reported feeling "stressed out" about the visit and attributed his poor performance in school on "his inner turmoil." When Geraldo directly confronted Gregory about past abuse and expressed his anger about it, Gregory accused him of being "crazy." In the social worker's opinion, continued contact between Geraldo and Gregory would be detrimental to Geraldo.
Further, Geraldo was making tremendous progress in therapy and his placement with Vera allowed him to experience stability for the first time in his life. His symptoms of posttraumatic stress disorder were decreasing. In Dr. Wener's opinion, continued contact between Geraldo and Gregory would result in a therapeutic setback for Geraldo. Even Gregory agreed Geraldo should not be forced to visit him right now. From this evidence, the court could reasonably find it was in Geraldo's best interests to terminate visits.
C
Gregory contends Dr. Wener did not have the necessary information to properly evaluate whether Geraldo was being truthful about past events. However, Gregory's argument misconstrues the court's comments and ignores other evidence that terminating visits between Geraldo and Gregory was in Geraldo's best interests.
In finding Geraldo met his burden of showing it was in his best interests to terminate visits with Gregory, the juvenile court expressly found Dr. Wener's testimony was credible. The court then commented that it appeared Dr. Wener may not have access to certain materials and information about Geraldo, and thus, "is working without all the information." The court encouraged Agency to send Dr. Wener all its reports to enable him to continue the therapeutic process, which would inure to Geraldo's benefit. Contrary to Gregory's argument, these comments about future treatment do not show the court found a "lack of legitimate evidence" on which it based its findings when ruling on the section 388 petition.
Moreover, the information Dr. Wener had about Geraldo was accurate. Geraldo had had weekly sessions with Dr. Wener for eight months. Dr. Wener had spoken to Vera and the social worker about Geraldo's unstable and chaotic past. He received some documentation about Geraldo's background and knew that Geraldo had been moved around frequently. Psychological testing showed Geraldo had symptoms of posttraumatic stress disorder. Geraldo disclosed to Dr. Wener some of the troubling aspects of his life with Gregory. More importantly, Geraldo was able to share his feelings and clearly express his position regarding contact with Gregory, saying he did not want to see Gregory or return to the life to which Gregory had exposed him. Nothing in the record indicates Geraldo was not being truthful in the therapeutic process. Dr. Wener had ample information from which he could render a valid expert opinion.
II
Gregory contends he was denied due process when the court terminated visits with Geraldo despite recognizing Dr. Wener did not have important information to enable him to treat Geraldo and determine why Geraldo no longer wanted contact with Gregory.
Due process requires notice and an opportunity to be heard. (In re Joshua M. (1998) 66 Cal.App.4th 458, 471; In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.) Here, Gregory does not dispute that he received proper notice of all dependency hearings. Gregory, who was represented by counsel throughout the proceedings, fully litigated Geraldo's section 388 petition and had the opportunity to cross-examine Dr. Wener about his opinion. As we previously concluded, Dr. Wener had been treating Geraldo for eight months and had background and other information sufficient to give an informed opinion about whether terminating visits was in Geraldo's best interests. No due process violation occurred.
DISPOSITION
The order is affirmed.
WE CONCUR: NARES, Acting P. J., O'ROURKE, J.