Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK76292, Randolph Hammock, Juvenile Court Referee.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
The dependency court terminated its jurisdiction over Isabella L. (Welf. & Inst. Code, § 364, subd. (c).) Jurisdiction was originally asserted because the child’s presumed father, Philip L. (Father), inappropriately touched her vagina and she was unwilling to be alone with him. (§ 300, subd. (b).) Father challenges the court’s exit order giving the child’s mother sole physical custody, limiting Father to monitored visitation, and requiring Father to participate in a sexual abuse awareness class. The order is abundantly supported by the evidence. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTS
This Court’s Prior Opinion
In a prior appeal, Father challenged the dependency court’s jurisdictional findings. (In re Isabella L. (Mar. 9, 2010, B217112) [nonpub. opn.].) We summarize below the factual history set forth in our opinion in case No. B217112.
In 2008, Father and Isabella’s mother (mother) were separated and co-parenting four-year-old Isabella. On December 30, 2008, Isabella disclosed to an adult friend that Father had touched her “pepa” (slang for vagina) while playing patty-cake: she demonstrated how Father played with her. Isabella disliked Father’s touching, but had not told him because she felt embarrassed. Isabella made similar statements to mother, who promptly made an appointment with Isabella’s doctor.
A pediatrician examined and interviewed Isabella on January 2, 2009. There was no evidence of physical abuse, and the physician’s conclusions were “uncertain.” During the exam, Isabella confided that Father touched her vagina while she was sleeping in his bed, and she ran away. Isabella gave conflicting statements as to whether she touched Father’s penis.
Father denied touching Isabella’s vagina, except to apply a topical cream prescribed for a rash on her face and buttocks in early December 2008. Mother had directed Father to apply the ointment “up her nose and inside the lips in her vagina.” Father applied the treatment many times a day for more than one day, and Isabella did not like it. Father stated that he was “very relaxed about nudity” and mother confirmed that Father like to be nude at home, during sleeping and waking hours. Mother reported a fairly recent incident in which she found Father sleeping naked in Isabella’s bedroom. Father claimed that he had initially worn shorts, but must have kicked them off during his sleep. Father had been showering with Isabella since he and mother separated, but stopped doing so at mother’s request.
Isabella and Father were interviewed by a social worker who handles sexual abuse cases. Father attributed the allegations to an inappropriate game of patty-cake that Isabella learned in child care. Isabella was calm and comfortable during her interview, until asked whether father had touched her vagina. At that point, she began moving around the room in an agitated manner, tossing her dolls in the air, evading questions, and changing the subject.
A petition was filed by the Department of Children and Family Services (DCFS) on February 18, 2009, alleging a failure to protect and sexual abuse. Isabella was detained and Father was given monitored visitation. At a contested adjudication in April 2009, Father stipulated that he showered or bathed with Isabella until September 2008, and that he fell asleep in Isabella’s room and kicked his shorts off in the night. Isabella testified that she had fun at Father’s house; however, she did not like that Father “touched my private parts.” When Father touched her she would “go up in my bunk bed... so he couldn’t catch me.” She would like to see Father, but only “with somebody watching. Because I’m scared. And I’m thinking in my mind if he’s going to do something wrong or not.” Father was not helping her apply medicine when he touched her private parts. On one occasion, Father touched her “inside my panties” when she was sitting on a couch; she told him to stop because it “wasn’t a good thing to do” and made her feel “bad.” Isabella said she did not feel safe with Father.
The court dismissed the sexual abuse allegation and sustained an allegation that “On numerous prior occasions the child Isabella [L.] has disclosed that the father has touched her in the vaginal area. Minor has reported that his touching made her uncomfortable and that she has asked the father not to touch her in that manner. Minor has also reported that she does not feel comfortable alone with the father. The minor’s perception that she has been touched in an inappropriate manner by the father, the minor’s expressed unwillingness to be alone with the father, as well as the father’s unawareness of appropriate boundaries in the father-daughter relationship, places the minor at risk of physical and emotional harm in the care of the father at this time.” The court ordered both parents to participate in counseling and a “sex abuse awareness program, ” so that Father could learn “boundaries.” We affirmed the dependency court’s order.
Events Occurring Since the Jurisdiction/Disposition Hearing
In June 2009, mother requested permission to take Isabella to Uruguay so that mother could renew her visa and have a traditional summer vacation with her family there. Mother noted that she has a stable tenure track job at Cal State Los Angeles, and that she would not deprive Isabella of her right to live in California. Over Father’s objections, the court approved mother’s request to take Isabella to Uruguay for vacation until August 31, 2009, with mother’s agreement to return to the United States as soon as her visa problem was resolved.
On September 28, 2009, Father notified the court that mother and Isabella did not return from Uruguay, and mother was preventing him from communicating with Isabella. He asked the court to initiate proceedings under the International Child Abduction provisions of the Hague Convention. In response, DCFS argued that mother had maintained regular communication with the social worker, but was unavoidably detained in Uruguay due to visa problems. U.S. Immigration Services denied mother’s application for a work visa on September 14, 2009. Mother informed the social worker that Father continued to have telephonic visitation with Isabella. Isabella’s attorney called the child to confirm that she had telephone visitation with Father every Sunday.
The court denied Father’s request to involve government authorities to secure Isabella’s return to the U.S.; however, it issued a protective custody warrant for Isabella based on the violation of the court’s order to return the child by August 31, 2009. The court held the warrant for 60 days to see if Isabella and mother returned, and to learn whether there would be a psychological impact on Isabella if she returned to the U.S. without her mother.
In its six-month review report in November 2009, DCFS reported that Isabella went for a visit with Father on June 4, before leaving for Uruguay. The visit was supposed to be monitored by Father’s friend, who departed for a movie, leaving Father and Isabella in his apartment with Father’s cousin Marion D. Isabella told the social worker that Father took her into a bedroom, tickled her, reached inside her underwear, and “put his finger in my pepa.” She told him to stop, but he refused, so she left the bed to get away from him. Isabella complained that Father was touching her privates, but Marion D. did nothing to stop the abuse. The social worker notified the police, who took a report: Isabella told them that Father rubbed her privates hard, and put his finger inside of her vagina, causing discomfort.
Isabella’s U.S. therapist noted that the child has a high level of anxiety and confusion, and strongly recommended that her visits with Father be “very structured” and be monitored by “a person trained in sexual abuse issues that can monitor the father’s behavior.” Isabella spontaneously spoke to the therapist about Father’s touching her “pepa, ” and was sad and upset about the molestations. Isabella met with a licensed therapist in Uruguay, and revealed that Father plays with his genitals and hers, forces her to touch him, carries out cunnilingus and possibly fellatio, and shows her his erections and ejaculations. Isabella described and drew pictures of Father’s erections. As a result of the incest, Isabella is suffering anguish. She should not be left alone with Father, as it could cause emotional harm. Based on the therapists’ reports, DCFS asked the court to require that Father’s visits be monitored by Isabella’s therapist, or be in an environment approved by her therapist.
In a December 2009 progress report, DCFS informed the court that Isabella and mother were still living in Uruguay. DCFS answered numerous questions posed by Father about mother’s visa application and Isabella’s therapy. Both of Isabella’s therapists stated that she “displays symptoms of anxiety following contact with her father, ” so visitation should take place in a therapeutic setting or stop completely until the child can heal or resolve her emotional turmoil. DCFS noted that Father was referred to a sexual abuse awareness program (CSAP) at the disposition hearing. Father signed the disposition plan on April 21, 2009. A therapist at the CSAP explained to Father that participants in the non-offenders group were generally parents or relatives who were not accused of sexual abuse; however, “based on what he was reporting to her he would likely be assigned to the offenders group as he was not appropriate for the non-offenders group.” Father “said flat out that he would not participate in the offenders’ group.” Participants in CSAP meetings are not required to admit to anything or to call themselves an offender or perpetrator, but must want to participate in the sessions.
At a hearing on December 14, 2009, Father indicated that he planned to go to Uruguay to see Isabella. There was some dispute where visits could occur. It was decided that his visits could be monitored by Isabella’s therapist or at the U.S. embassy. The court quashed the protective custody warrant for Isabella in March 2009.
Between January and April, 2010, a contested hearing was conducted to determine whether the court should continue its jurisdiction. Father’s cousin Marion D. testified that she monitored Father’s visit with Isabella in June 2009: she denied leaving Isabella unattended with Father at any time during the visit. Father testified that his telephone visits with Isabella have been unreasonably limited. He accused mother of coaching Isabella, encouraging her to ask Father why he touched her, and alienating the child from him. The court asked Father whether he had taken any kind of course involving sexual awareness or sexual boundaries. Father indicated that he has not done so.
Father asked to have mother send Isabella to California, alone, for a visit. DCFS opposed this request because the child is only five years old and would be traumatized by the separation from mother; further, Father’s relatives are harsh and angry with Isabella when she tries to tell them that her reports of Father’s sexual abuse are true. As a result, the paternal relatives are not reliable monitors for a visit. Isabella’s therapist in Uruguay opined that “it would be extremely detrimental to expose the child to a new trauma that separating her from her mother would constitute.”
Father offered expert testimony from a psychologist who examined the DCFS reports and hearing transcripts. The expert acknowledged that Isabella might feel anxiety and fear traveling by plane for a long distance, but it was “possible” that her excitement and anticipation at seeing Father “could override some anxieties.” While she might have short-term “adjustment problems” at being separated from mother, these problems would be offset by the benefits of building “a good, stable relationship with her father.” The expert referred to Isabella’s allegations of abuse as “a hand that Isabella has been dealt, ” but believes that she should “to able to create a real relationship with the father.” Mother was preventing Isabella from having a relationship with Father, to the child’s detriment. If Isabella is allowed to live in a state of fear toward Father, it could cause her stress and she would be unable “to make peace with all of it.” The expert opined that it was “inconclusive” whether Isabella was inappropriately touched by Father. Based on her review of the records—and without ever talking to the child—she believes that Isabella was “probably influenced.” The expert conceded that “of course a five-year-old girl isn’t going to want to leave the country without her mother.”
Father’s therapist submitted a letter stating that Father has bipolar disorder, but is on medication for it. The therapist has been working with Father to help him “cope with the stress and anxiety created by these legal problems. [Father] also has expressed increased insight into how his actions in the events that led up to his being charged with molesting his daughter could have been a result of poor judgment on his part.”
A December 2009 letter from Isabella’s therapist states that the child presents symptoms of child abuse, such as bedwetting and defecating, which flare up when she has weekly communication with Father. Isabella told the therapist that Father kissed her buttocks and vagina, and asked her to “suck my dick because it was a candy bar.” Isabella was “a baby when my dad started it and my dad told me not to tell mom because she would be angry with me.” Isabella draws “monsters” through which to talk about her fears: “monsters are afraid of children, ” so she “yelled to scare Dad but he was not afraid. I said no but he ignored me.”
The therapist opined that Isabella’s drawings, play and clear accounts indicate child sexual abuse. Generalizing about the need for a child to have a father figure misstates the effect of domestic violence. It is common to attack the child’s mother for alienating the child, to re-victimize both the child and the mother. Father has not assumed any responsibility for his actions, and sends Isabella chocolates to abuse her from a distance because he has equated chocolates with his penis.
The DCFS social worker assigned to this case testified that she is monitoring Father’s conversations with Isabella. Mother refuses to be the monitor because she resents Father’s attacks on her integrity. Isabella appears to enjoy her conversations, with Father, tells him she loves him, and has him read stories to her. The social worker does not believe that mother is coaching Isabella to make accusations against Father, and feels that there is no risk to Isabella in mother’s custody.
Mother’s immigration attorney testified that mother’s work visa application was approved by U.S. authorities in mid-February 2010, so mother can return to this country if her employer confirms that she still has a job. It was stipulated that the CSAP offers a program that is appropriate for Father, based on the sustained language of the petition.
Father’s therapist testified that she has been seeing him since January 2009. The therapist believes that Father applied antibiotic cream to Isabella’s vagina, causing her discomfort and pain. She and Father discussed boundaries with respect to this incident of applying prescribed cream, and he needs to “back off” if Isabella objects. The therapist is unaware of any other “inappropriate boundaries” that might have been breached. Father told the therapist there is no evidence for the additional abuse that Isabella accuses him of, so they mostly discuss “how upsetting and how horrible this is for both him and his daughter to be put through this.” The therapist was unaware that Father admitted to kicking off his trousers and sleeping naked in Isabella’s bedroom: he never told her about it, though it would bear discussion because it is inappropriate behavior.
The therapist “would have a hard time believing it.”
The acrimony of the parental divorce is the “main focus” of Father’s counseling. He and the therapist discuss the “unfounded accusations” against Father, which the therapist defined as “an accusation for which there is no evidence.” The therapist has no concerns that Father poses a risk to Isabella because Father “has expressed nothing but love and concern and caring for her.... He has her welfare as a primary consideration in his mind.” The therapist is not evaluating Father; rather, “I basically have to go by what he tells me.” She feels equipped to provide assistance to Father regarding the sustained allegations of the petition.
Father testified that Isabella expressed delight about the prospect of coming to California, and about the gifts that he sends to her. He stated that he is bipolar, and asserted that mother has a mild form of bipolar disorder and has expressed suicidal thoughts. He did not previously mention mother’s alleged suicidal ideation to the court. Mother suffered emotional trauma from being abused by her father, and has passed that trauma to Isabella. Father believes he has complied with court orders because he participates in psychotherapy, tried to get into a CSAP, and has voluntarily attended parenting classes. He is not currently enrolled in a sex abuse awareness class, and was unaware that he can now enroll in such a program. Father’s family does not believe that he abused Isabella.
DCFS, mother, and Isabella’s attorney asked the court to close the case because there is no risk to Isabella in mother’s care; Father asked the court to retain jurisdiction. Isabella’s attorney asked that Father’s visits be monitored and that he complete the case plan.
On April 23, 2010, the court terminated its dependency jurisdiction over Isabella. It gave the parents joint legal custody and physical custody to mother. While Isabella is in Uruguay, Father is allowed reasonable supervised visits, at least once weekly, in person, by telephone, or by computer teleconference. Mother may monitor the visits, but cannot unreasonably interfere with them. Father may have a two-week visit with Isabella, in Los Angeles, every six months: Isabella will fly alone from Uruguay, at Father’s expense. During these extended visits, Father is not permitted to spend the night where Isabella is staying, and “may not be left alone, at any time, without appropriate adult supervision, with the child.” In short, the court ordered that “there be an approved monitor at all times for all contact between the Father and child.” If Isabella is residing in Los Angeles with mother, Father is authorized to have monitored visits with the child every other weekend, and monitored telephone or computer contact each Wednesday. The reason for requiring monitored visits is that Father did not complete or make substantial progress in court-ordered programs of (1) individual counseling to address sexual boundary issues, and (2) a sexual abuse class to address sexual boundary issues. While completion of these programs may be a “changed circumstance, ” the order will not be modified absent a showing that Father has made substantive progress addressing the problem and a change would be in the child’s best interest.
DISCUSSION
Father has taken a timely appeal from the dependency court’s postjudgment order terminating its jurisdiction and implementing exit orders regulating custody and visitation. If a child is declared a dependent of the court but remains in the home of a parent, the court reviews the status of the case every six months to determine “whether the dependency should be terminated or whether further supervision is necessary.” (§ 364; In re Joel T. (1999) 70 Cal.App.4th 263, 267; In re Natasha A. (1996) 42 Cal.App.4th 28, 35.) “The goal of dependency proceedings—to reunify a child with at least one parent—has been met when, at disposition, a child is placed with a former custodial parent and afforded family maintenance services.” (In re Pedro Z. (2010) 190 Cal.App.4th 12, 20.)
In this instance, the court determined that Isabella is safe in the home of a parent, her mother. Because the goal of the dependency proceeding was met, the court terminated its jurisdiction following a six-month review hearing under section 364. Before fashioning its order, the court conducted a full evidentiary hearing, looking at the totality of the child’s circumstances. (See In re Roger S. (1992) 4 Cal.App.4th 25, 29-31; In re Michael W. (1997) 54 Cal.App.4th 190, 194.) The court has discretion, when terminating its jurisdiction, to make custody and visitation determinations and to require counseling as a condition of visitation; these determinations remain in effect until modified by a family law court. (§ 362.4; In re Chantal S. (1996) 13 Cal.4th 196, 202-204, 213; In re Nolan W. (2009) 45 Cal.4th 1217, 1229.)
On review, we examine the entire the entire record for substantial evidence to support the court’s findings. (In re N.S. (2002) 97 Cal.App.4th 167, 172.) One of the issues is whether an offending father is “in total compliance with his case plan” and has “shown good progress” toward integrating information learned in therapy into his daily life. (Id. at p. 173.) We assess the evidence in the light most favorable to the lower court’s order, and the paramount consideration is the child’s best interests. (In re Misako R. (1991) 2 Cal.App.4th 538, 545; In re Mary S. (1986) 186 Cal.App.3d 414, 418-419.)
Father claims that he has “alleviated the protective concerns that initially justified dependency jurisdiction” so he should have joint physical custody with mother. We disagree. The evidence does not support a finding that Father has alleviated any of the concerns that led to dependency jurisdiction.
Although Father’s therapist testified on his behalf, her credibility as a persuasive witness is minimal. She stated that the “main focus” of Father’s therapist is his divorce. While she “basically [has] to go by what he tells me, ” it appears that Father did not tell her much, inasmuch as he concealed from her his in-court stipulation that he slept naked in Isabella’s bedroom. The therapist conceded that sleeping naked in the child’s bedroom was inappropriate behavior that would bear discussion, and she found it hard to believe that Father would accidentally kick off his pants while asleep. The therapist accepts, without evaluation, Father’s representations that Isabella’s recent disclosures are “unfounded accusations.” There was no apparent discussion between Father and his therapist about how Isabella is able to draw pictures of and describe in detail Father’s erections and ejaculations.
Father’s therapist is reminiscent of the therapist in In re Natasha A., supra, 42 Cal.App.4th 28. In that case, the father’s therapist accepted his representations that he never molested his child and was offended by the idea of attending sexual abuse classes, leading the therapist to conclude that her patient “‘does not appear to fit the profile of a pedophile [and] I have no evidence which indicates that [father] presents a danger to his child.’” (Id. at p. 37.) The therapist’s statements contradicted the sustained findings in the petition, indicating that the father had not come to terms with the issues, did not attend classes, and persistently denied the allegations that led to dependency court jurisdiction. (Ibid.)
Father is far from being “in total compliance with the case plan.” (Compare In re N.S., supra, 97 Cal.App.4th at p. 173.) Rather, he has spent two years avoiding compliance with the case plan by not enrolling in the CSAP, a “‘specialized sexual abuse treatment program within [DCFS], which treat[s] offenders, non-offending caretakers, siblings, and victims. Its focus is on adult acceptance of responsibility for the dysfunctional relationships within the family that resulted in the child sexual abuse, also on helping the child victim[s] free themselves of guilt and inappropriate [responsibility] for the molestation.’” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 696, fn. 2.) If Father did not like the CSAP, he has the resources and education to find a different program to complete the case plan. At the very least, Father had a duty to fully disclose to his therapist the circumstances of the sustained allegation (including his stipulations to sleeping naked in his child’s room and showering naked with the child until September 2008) and to fully discuss the import of Isabella’s therapeutic disclosures since the jurisdiction hearing.
The adequacy of the assistance provided by DCFS is irrelevant: Father was not entitled to reunification services. (In re Pedro Z., supra, 190 Cal.App.4th at pp. 19-21.)
Isabella’s disclosures to her therapists are extremely disturbing, to put it mildly. How would a five-year-old child know to tell her therapist that Father asked her to fellate him, treating his penis like a chocolate bar? This eye-opening disclosure does not seem to give Father much pause. Father is fixated on himself. While busy painting himself as a victim and defending his behavior, he displays utter indifference to Isabella’s fear of being alone with him. He certainly offers no explanation for Isabella’s recent detailed descriptions of his sexual conduct. Tellingly, the miniscule statement of facts in Father’s appellate brief omits virtually all of the evidence adduced at the section 364 hearing, which went on for days over the course of four months. Ignoring the evidence won’t make it disappear, particularly since we view the entire record in the light most favorable to the prevailing party. Judging from Father’s brief, he mistakenly believes that he was the prevailing party, as he only cites evidence placing himself in a favorable light.
Under the circumstances, it would be improper for any court to give Father unmonitored contact with Isabella until it is fully established that Father takes responsibility for Isabella’s fear of him, there is no possibility of further emotional or physical harm to the child, and the court is convinced that the child no longer requires supervision for her protection. (See In re Francescisco (1971) 16 Cal.App.3d 310, 314-315; Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, 145 Cal.App.4th at pp. 698-699 .) It would not be in Isabella’s best interest to have any unmonitored contact with Father until the court is certain that the child perceives no further threat from Father.
DISPOSITION
The order terminating juvenile court jurisdiction is affirmed in all respects.
We concur: ASHMANN-GERST, J., CHAVEZ, J.