Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J515660, Laura J. Birkmeyer, Judge.
HALLER, J.
Presumed father, Josue A., appeals following a May 2009 dispositional judgment in the dependency case of child, Jennifer A. Josue contends the domestic violence treatment component of his reunification plan is not supported by substantial evidence, and the court abused its discretion by not enforcing a September 2008 visitation order. We affirm.
The original dispositional judgment occurred in January 2005, before Josue appeared in the case. The court treated the 2009 proceedings as a dispositional hearing as to Josue.
BACKGROUND
In the 1990's Josue and S.S. left Mexico and moved to Oakland, California. In May 1998 Jennifer was born to S.S. in Oakland. S.S. and Josue signed a paternity declaration stating that Josue was the biological father. The declaration listed an Oakland address for Josue.
S.S. claimed that Josue was violent with her. She fled to Mexico with Jennifer. Josue followed them. In 2000 S.S. filed a declaration with a district attorney's office in Mexico stating that she found her sister, N.S., in Josue's bed and he threatened to kill S.S. and her family and take Jennifer. In 2001 S.S. filed another declaration stating that she needed medical treatment after Josue physically abused her. S.S. returned to the United States with Jennifer. N.S. terminated her own relationship with Josue because he hit her and her children, raped her and threatened her.
S.S. married Hugo N. in 2001. Jennifer last saw Josue when she was two years old. He made no effort to contact her. Jennifer had no memory of Josue and believed Hugo was her father.
The San Diego County Health and Human Services Agency (the Agency) filed a dependency petition in December 2004 because six-year-old Jennifer was exposed to domestic violence between Hugo and S.S. Jennifer was detained with S.S. on the condition that Hugo not reside in the home. In January 2005 the juvenile court entered a true finding on the petition and ordered Jennifer placed with S.S. on the above condition. In May 2006, after more violence between Hugo and S.S., Jennifer was moved to foster care. Jennifer had multiple placements during the course of this case.
Although the Agency had a copy of the paternity declaration when it filed the dependency petition, the petition listed Josue's whereabouts as unknown. The Agency instituted an ultimately unsuccessful search for him in Mexico. In 2005 the Agency discovered a new Oakland address for Josue. In 2006 it sent a notice of hearing to that address although a minute order sent there by the juvenile court had been returned months earlier.
In 2007 the Agency began a new search for Josue. After about a year, that search proved successful. On June 30, 2008, the Agency served notice of the September 24 Welfare and Institutions Code section 366.26 hearing on Josue at a San Leandro, California address. On July 2 the court received Josue's request for appointed counsel. On July 16 the court appointed counsel. On August 4 it ordered paternity testing at counsel's request. The test results, received by the court on September 15, showed a 99.96 percent probability that Josue was Jennifer's biological father.
All further statutory references are to the Welfare and Institutions Code.
At the September 24, 2008 hearing, Josue's counsel requested visitation for Josue and said he might request placement "[i]n the future." Counsel said she would have to consult with Josue before requesting biological father status. The court ordered supervised visits for Josue and gave the Agency discretion to lift the supervision requirement. The court continued the section 366.26 hearing to January 8, 2009.
The court did not specify any further requirements for the visits.
By the time Josue had entered the case, Jennifer had been diagnosed with depression, anxiety, and attention deficit disorder. She was confused and distressed by her separation from S.S. and Hugo.
By early October 2008, Jennifer was refusing to continue therapy because it had not reunited her with her family. Social worker Jose Santana believed it would be difficult for Jennifer to learn that Josue was her biological father and this information should be communicated carefully. Santana proposed having S.S. tell Jennifer with the assistance of S.S.'s therapist or Santana.
At an October 16, 2008 hearing, attended by Josue and his girlfriend, Sonya C., Josue's counsel complained there had been no visits between Josue and Jennifer. Santana agreed to meet with Jennifer and S.S. the next day for the disclosure to Jennifer of Josue's existence. S.S. refused. Jennifer's counsel therefore suggested that Santana make the disclosure to Jennifer in the foster mother's presence. Josue's counsel requested presumed father status for Josue and a continuance so she could consult with him after his first visit.
The court found that the delay in beginning visitation was warranted by Jennifer's need for emotional support and the prerequisite of disclosing Josue's status in a manner that was positive for both of them. While the court did not order a particular disclosure plan, it specified that disclosure should occur as soon as possible so that Josue and Jennifer could begin to communicate. The court gave the Agency discretion to place Jennifer with Hugo's mother in Mexico and encouraged the Agency to facilitate as many visits as reasonably possible before the placement. The court set a November 3 hearing on presumed father status and visitation.
The court did not describe the visits further.
On October 17, 2008, Jennifer and her foster mother met with Santana at his office. Jennifer was quiet and seemed scared. Santana gently told her that Josue was her father and wanted to meet her. Santana asked Jennifer if she would like a short meeting in the presence of the foster mother and Santana. Jennifer said, "no, he is not my father and I do not know him." Santana asked if she would like to see a picture of Josue. Jennifer said yes, but she still did not want to meet him.
Immediately after the disclosure, Josue telephoned Santana. Josue said he and Sonya were at Santana's office, saw Jennifer leave and took photographs of her and the foster mother's car. Santana explained this was inappropriate and Jennifer needed time to assimilate the new information. Later that day the foster mother told Santana that she had seen Josue and Sonya taking photographs. When the foster mother and Jennifer left Santana's office, Josue and Sonya followed them in a car part of the way home. Jennifer became scared and cried.
On October 18, 2008, Sonya went to the foster home and asked to talk to Jennifer. The foster mother consented because she was afraid of Josue. She also agreed to let Sonya record the conversation. Sonya repeatedly asked Jennifer why she did not want to meet Josue. She gave Jennifer a gift and said she would receive another if she met Josue. Jennifer said she did not want to see him. Sonya said Jennifer's counsel had agreed to a visit but Santana refused. Sonya said she and Josue were fighting for custody and would not let Jennifer go to Mexico. After Sonya left, Jennifer asked the foster mother if she would be sent to live with Josue. On October 29 Jennifer began seeing a new therapist, Abigail Gonzalez.
At a November 3, 2008 hearing, Josue's counsel said Josue wanted custody and requested a continuance on the issue of paternity. The court authorized telephone contact between Jennifer and Josue in a therapeutic setting when the court was advised it was appropriate. In the meantime, Josue was allowed to write and send photographs to Jennifer through Santana. The court ordered that Sonya have no contact with Jennifer and continued the hearing to December 2.
In a report prepared for the December 2, 2008 hearing, Santana recommended that Jennifer not be moved to Mexico. He said she had looked at photographs and read a letter from Josue and had kept the photographs and letter. On December 2 the court granted Josue's request for presumed father status. Josue and Jennifer both attended the hearing. He greeted her and tried to show her photographs but she ignored him.
On January 8, 2009, the day of the section 366.26 hearing, Josue's counsel filed a section 388 petition contending the Agency had not searched for him diligently and requesting the court vacate the jurisdictional findings and dispositional judgment and order Jennifer transitioned into his custody. The Agency conceded its search was deficient but argued it would be detrimental to Jennifer to place her with Josue. The court set a January 22 hearing on the section 388 petition and vacated the section 366.26 trial date. On January 22 the court found it would be detrimental to place Jennifer with Josue because he was a stranger who had traumatized her by trying to force his way back into her life. The court set a February 9 hearing on the issue of services for Josue.
Jennifer was attending therapy reluctantly and said she would continue only if it helped her reunify with S.S. Jennifer remained afraid of Josue and adamantly opposed to contact. Gonzalez believed that introducing Josue to Jennifer during a therapy session would cause Jennifer to distrust Gonzalez. Gonzalez planned to guide Jennifer toward contact with Josue. Santana offered to supervise a short visit in his office with the foster mother present, but Jennifer refused, saying she did not want to see or speak with Josue.
On February 9, 2009, Josue's counsel objected to making contact between Jennifer and Josue contingent on her participation in therapy. Counsel also objected to domestic violence treatment as a component of Josue's reunification plan. The court set a dispositional hearing on those issues for March 12. After Jennifer's counsel and Josue's counsel suggested that S.S. was attempting to influence Jennifer, the court prohibited any mention of Josue to Jennifer except by her therapist, her attorney and Santana. The court noted the importance of prompt contact between Josue and Jennifer so she could decide whether she wanted a relationship with him. The court requested that Santana and Jennifer's counsel ask Gonzalez if, in light of Jennifer's opposition to contact, there could be a brief, therapeutically appropriate meeting between her and Josue before the next hearing.
After the February 9, 2009 hearing, Gonzalez told Jennifer about the plan for contact with Josue. Jennifer said she would quit therapy if Josue came to Gonzalez's office. Gonzalez mentioned the possibility of a meeting at Santana's office, a neutral setting, or school. Jennifer began acting out at school and in the foster home. Following a March 9 therapy session she refused to attend further appointments. Gonzalez and Santana believed that Jennifer should be encouraged to resume therapy but forcing her to attend would not be in her best interests. The foster mother and Santana explained to Jennifer that therapy would help her cope with her feelings about Josue. Jennifer told her attorney that she would resume therapy.
At Josue's request, the March 12, 2009 hearing was continued to April 22. On April 22 N.S. testified that she had seen Josue hit S.S. "many times," most recently around 2002 or 2003 in Mexico. N.S. had also heard Josue threaten to take Jennifer away from S.S. Just days before the April 22 hearing Josue had appeared outside N.S.'s home when she was taking her children outside. When she tried to close the door, he put his foot in the doorway and said, "If you don't want to talk to me, you're going to see what's going to happen." S.S.'s and N.S.'s father testified that S.S. had told him that Josue hit her frequently. N.S. had told him that Josue hit and raped her.
The court continued the hearing to May 8, 2009. Before that hearing, Gonzalez reported that contact with Josue or any other traumatic experience would impair Jennifer's emotional state. Because Jennifer had not resumed therapy, on May 6 the Agency referred her to an in-home counselor who was to build rapport and then introduce the subject of visitation. Santana recommended a slow progression toward in-person visits, starting with films of Josue sent to Jennifer via the social worker, web camera contact and telephone conversations.
On May 8, 2009, the court found, by a preponderance of evidence, that a 52-week domestic violence program was a proper part of Josue's reunification plan. The court made the following factual findings. There was credible evidence that Josue was violent with S.S. and N.S. and that N.S. was credible. While S.S. was sometimes not credible, she could not have fabricated her 2000 and 2001 domestic violence reports to further her position in the present litigation. Her admission then that Josue was cheating on her with N.S. corroborated the claims of violence. The forceful and threatening nature of Josue's recent contact with N.S. demonstrated that he "still... pushes his way into things and... is more forceful about his own needs," indicating "he never learned a different manner of communicating and involving himself with women."
The court said that domestic violence treatment would help Josue understand how the violence between Hugo and S.S. had affected Jennifer. The court expressly stated this was not a basis for its order.
The court noted that Jennifer was psychologically fragile and Josue's forceful behavior in October 2008 had exacerbated her anxiety and contributed to the six-month delay in arranging contact. The court therefore ordered "visitation in a measured and progressive manner...." Supervised contact was to begin by letter or email. This was to be followed by Agency-facilitated supervised web camera contact, providing safety for Jennifer and allowing Josue to demonstrate that he was "not a bad guy." After communication developed, short supervised in-person visits would begin. The court ordered the Agency to work with Jennifer's and Josue's attorneys and submit a report in 60 days. The court emphasized that Jennifer needed to know her placement would not change as a result of this contact.
Josue's counsel agreed with the visitation plan. Jennifer's counsel said she and the new social worker would relay the plan to Jennifer. The court stated it was willing to speak with Jennifer and help in any way necessary. At the court's request, Josue's counsel said he would tell Josue the plan was designed to help him "reconnect[] with a child who is now 11 years old and has a lot of history."
DISCUSSION
I. Domestic Violence Treatment
"The [juvenile] court has broad discretion to determine what would best serve and protect the child's interest" and what services would promote reunification. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006, 1008.) " '[P]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue." (In re S.O. (2002) 103 Cal.App.4th 453, 461.) When the record shows a parent has a deficiency that impedes his ability to reunify, the court may order treatment for that deficiency even if it was not a basis for jurisdiction. (In re Christopher H., supra,at pp. 1007-1008.) We may not reverse absent a clear abuse of discretion. (In re Neil D. (2007) 155 Cal.App.4th 219, 225.)
The juvenile court gave credence to S.S.'s and N.S.'s reports that Josue had been violent with them in the past. We have no power to second-guess this credibility determination. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Moreover, there was reason to believe that Josue's propensity to domestic violence had not completely abated. He continued his aggressive conduct toward N.S. during the pendency of this case, threatening her and blocking her attempt to escape into her home. He behaved in an intimidating manner with Jennifer and her foster mother, following them, taking photographs and sending Sonya to the foster home to question and pressure Jennifer. While this behavior may not constitute domestic violence, it tilts dangerously in that direction and demonstrates that Josue still uses threats and force to achieve his goals. His propensity to domestic violence is relevant to Jennifer's welfare. (In re Guardianship of Simpson (1998) 67 Cal.App.4th 914, 938, 940.) The court did not abuse its discretion by ordering domestic violence treatment as a part of the reunification plan.
II. Visitation
"Visitation shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) In making a visitation order the juvenile court must consider the child's best interests. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) The court may curtail contact with a parent if it is not in the best interests of the child. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 838-839.) In determining the child's best interests, the court may consider "the possibility of adverse psychological consequences" of forcing a child to visit a parent. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238.) We review the court's visitation order for an abuse of discretion. (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1091, 1095-1096.)
Because the Agency failed to search for Josue adequately, his appearance in this case was delayed for more than three years. This was not his fault. Josue was responsible, however, for the fact that he was a stranger to Jennifer. He had made no effort to contact her during the many years preceding his first appearance in this case. By that time, Jennifer had endured years of neglect and exposure to violence, and her psychological state was fragile. By the time of the dispositional judgment Jennifer was nearly 11 years old and had not seen Josue for nine years. Because of this estrangement, and Jennifer's delicate emotional condition, the court recognized that Josue's introduction into her life required care and sensitivity. Rather than acting with sensitivity, Josue compounded Jennifer's distress. Less than one month after the court's first visitation order in September 2008, Josue followed and took photographs of Jennifer, found out where she lived and sent Sonya there with the message that Josue might assume custody. "[W]ith ample reason" (In re Danielle W., supra, 207 Cal.App.3d at p. 1238) Jennifer was very afraid of Josue.
This is not a case, as Josue suggests, where the court gave the child or social worker unfettered discretion to decide whether visitation would occur. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505.) Nor is it a case where the court suspended (In re C.C. (2009) 172 Cal.App.4th 1481, 1490) or failed to enforce a visitation order. Rather, it is a case where the court carefully balanced the parent's right to visits with the child's best interests, in light of her psychological fragility and fears. The court achieved this goal by ordering progressively closer contact, accompanied by input from all parties and the court's active involvement and oversight. The process had already begun with Jennifer's receipt and retention of photographs and a letter from Josue. This judicial effort to develop a relationship between Josue and Jennifer was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.