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In re Justin D.

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E043497 (Cal. Ct. App. Jul. 29, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Nos. J199528 & J199529, A. Rex Victor, Judge.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.

Amanda F. Benedict, under appointment by the Court of Appeal, for Minors.


OPINION

HOLLENHORST, J.

Richard D. (father) appeals from the juvenile court’s order denying his Welfare and Institutions Code section 388 petition to request a modification of the previous order suspending visitation with his sons, Justin and Bryan D. (the children). Father also claims that the court refused to allow him to present evidence at a postpermanency hearing concerning the reinstatement of visitation and reunification services. We affirm.

All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

Counsel for the children filed a letter brief on November 29, 2007, urging this court to affirm the trial court’s order denying father’s section 388 petition.

FACTUAL AND PROCEDURAL BACKGROUND

Father previously appealed the juvenile court’s order suspending visitation, and this court affirmed the order. (In re J.D. (Mar. 19, 2007, E040365) [nonpub. opn.].) We will give a summary of the factual and procedural background from that opinion.

On January 27, 2005, the Department of Children’s Services (DCS) filed section 300 petitions on behalf of the children. Bryan was 10 years old and Justin was six years old at the time. The petitions alleged that the children came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the petitions alleged that there was a substantial risk that the children would suffer serious physical harm because father had a history of substance abuse, and because he inappropriately disciplined them physically. This discipline included slapping the children in the face and spanking them with their pants down, leaving bruises.

The court placed the children in the temporary custody of DCS and detained them with their stepmother. Furthermore, the court ordered visitation to be once a week, supervised by DCS.

Jurisdiction/Disposition Report and Hearing

The social worker prepared a jurisdiction/disposition report recommending that the children be declared dependents of the court and that father be provided with reunification services. The social worker reported that both children told her they were afraid of father. Justin said that father had slapped him on the face in the past and was always angry and yelling. Bryan said that when he got in trouble, father would take him into his room, pull down his pants, and spank him. The social worker opined that father had serious problems with anger, dealing with his emotions, and accepting help for himself and his family.

A contested jurisdiction/disposition hearing was held on March 23, 2005, and March 24, 2005, and father admitted spanking the children with their pants pulled down. He also admitted to using methamphetamine and marijuana for the past 26 years. The court sustained the allegations in the petitions and declared the children dependents of the court. The court also ordered father to participate in a reunification plan and ordered supervised visitation once a week.

Six-month Status Review

The social worker filed a six-month status review report recommending that father be provided with six more months of services. As to visitation, the social worker reported that father was visiting the children regularly, and he continually demanded longer, unsupervised visits. The social worker further reported that Bryan had had a problem with enuresis (bedwetting) most of his life. Justin reportedly also had a problem with enuresis and encopresis (involuntary defecation). The court continued reunification services for six more months and ordered unsupervised visitation for father, as arranged by DCS.

12-month Status Review

On March 17, 2006, the social worker filed a 12-month status review report in which she recommended that reunification services be terminated. Father was participating in a substance abuse program, but he was terminated for nonattendance. He was due to begin the program again in March 2006. The social worker reported that father had previously been terminated from several programs. The report stated that father began having unsupervised visits in January 2006. The social worker learned that father was arrested for domestic battery and possession of a controlled substance on January 16, 2006. The charges were dropped due to insufficient evidence. Nonetheless, in light of father’s arrest, his termination from the substance abuse program, Justin’s enuresis that started at the time of the unsupervised visits, and Bryan’s hesitancy to continue the visits, the social worker believed it was necessary to revert back to supervised visits.

In an addendum report dated March 27, 2006, the social worker reported that, on March 22, 2006, the children had their first supervised visit with father. Father told Bryan he was angry with him. Since father was visibly upset, the social worker escorted him out of the visiting area in order for him to vent his anger away from the children. After 20 minutes, father returned but then confronted Bryan about an incident that occurred between him and his half brother at the last visit. Father began to blame Bryan for the visits being decreased and said that Bryan was lying and manipulating the county. After that visit, Bryan told the social worker that he no longer wanted to have visits with father.

At a contested 12-month review hearing, the court found that visitation with father was detrimental to the children and suspended father’s visitation. The court also found that father’s progress in his case plan was insufficient and that there was no substantial likelihood of reunification within the statutory period. Thus, the court terminated reunification services. As to visitation, the court noted that Bryan feared father and did not want visitation. The court ordered, without prejudice, visitation in a therapeutic setting, and stated that the order could be changed if there was a recommendation by a therapist that such visitation was detrimental. In that case, the court indicated a section 388 petition could be filed.

Nonappearance Review

On May 25, 2006, the social worker filed a nonappearance review packet (the packet) requesting that contact between father and the children be discontinued, even in a therapeutic setting, because the visits were detrimental to the health of the children. The social worker attached two letters to the packet. The first letter was from Diane Moore, the children’s social worker at Arrowhead Foster Family Agency. The second letter was from Judy Rossbach, a therapist who met with the children to assess visitation with father. Moore felt that it was detrimental for the children to have further visits with father, even if trained professionals were there, since he placed them in fear. She stated that contacts with father caused psychological distress that manifested in encopretic and enuretic problems. Rossbach similarly opined that any forced contact between the children and father would be detrimental to their emotional health. Rossbach noted that the foster mother reported Justin’s encopresis stopped for six weeks, but began again as soon as father was granted eight-hour, unsupervised visits. The foster mother also reported that Bryan had episodes of enuresis, and they were always associated with contact with father. The court signed the nonappearance review order on June 12, 2006.

On July 5, 2006, father filed a motion requesting continuation of visitation in a therapeutic setting, claiming that the social worker’s packet was vague and that he never received a copy of it. He also asserted that the court ordered visits on a therapeutic basis, and it never modified the order.

The court held a hearing on father’s motion on July 12, 2006. The court stated that it signed the packet with the intent of suspending visitation for the well-being of the children. The court stated that it was going to confirm its stand, unless defense counsel had evidence to present. Defense counsel stated that the only basis in the packet for the request to discontinue visitation was the children’s desire not to have contact with father. When defense counsel argued that there was no evidence of detriment, the court referred to Moore’s letter. Defense counsel said he did not have the letter and stated: “In light of that, your Honor, what I would request is that possibly we can revisit the issue. If the children change their mind, if they, with time, with therapy, if it comes about as opposed to leaving it as a nonissue and leaving it on the board for, maybe to revisit the issue later on if the issues change.” The court agreed to make the order without prejudice, stating that if certain circumstances changed, namely that the therapist felt that visitation would be beneficial, and the children were not so adamant about not having visitation, it would revisit the issue of visitation. The court then confirmed the packet that it signed and ordered visitation, even in a supervised setting, to be suspended without prejudice.

Father’s Previous Appeal (E040365)

Father appealed the court’s order suspending visitation, arguing that the court erred in suspending visitation because the department failed to follow the court’s orders of providing visitation in a therapeutic setting and of filing a section 388 petition to modify the order. This court affirmed the order suspending visitation since there was evidence that visitation was detrimental to the children. We also found that even though the department did not file a section 388 petition, father was not prejudiced since he had an opportunity to, and did, oppose the court’s order suspending visitation. We further found that, since the order was made without prejudice, the court could change the order, if circumstances changed. The opinion was filed on March 19, 2007.

Postpermanency Hearings

October 20, 2006, Hearing

On October 20, 2006, the court held a postpermanency review hearing and maintained the children in foster care. The court found that visitation with father would still be detrimental to the children and continued the suspension of visitation without prejudice. Father objected for the record. The court continued the matter for a postpermanency review hearing on April 20, 2007.

April 20, 2007, Hearing

The social worker filed a status review report prior to the April 20, 2007, hearing, recommending that the children remain in their current living arrangement and that all prior orders remain in effect. In the report, she stated that the children were attending weekly counseling sessions with Rossbach, but the sessions only lasted 15 minutes. The social worker noted that Bryan showed underlying hostility and that Justin still had incidents of encopresis. The social worker opined that the children had not received adequate counseling. The social worker was in the process of getting appropriate weekly counseling for each child. Rim Family Services claimed that a referral for another 12 sessions was not forthcoming, so it discontinued therapy. The social worker further reported that both of the children consistently refused to consider visiting father, and that they did not want to live with their grandmother in Ohio. Although Justin had not had any problems with encopresis in the past three months, he began having incidents of encopresis after a telephone conversation with his grandmother.

At the April 20, 2007, hearing, father was represented by counsel. The court initially addressed a request for de facto parent status by the foster mother. The court then asked if counsel wished to be heard as to the social worker’s recommendation in her report. Counsel for the children stated that she interviewed the children at length that morning, and they said they were opposed to being sent out of state to the grandparents. They also stated they did not want contact with father because they continued to have significant issues with him. Father’s counsel then stated: “On behalf of my client, your honor, actually we advanced this. The reason I didn’t advance this was . . . my client’s visits were previously suspended with his children. [¶] It’s not an absolute suspension. It could resume with the social worker’s as well as the children’s therapist’s approval. [¶] In speaking with the social worker in the past, one of the issues the therapist is to address with the children, issues as far as contact or visitations with father.” Father’s counsel then stated that there was no mention in the report about the therapist addressing issues with father. The court agreed.

The court proposed to continue the matter for a further postpermanency review to address the de facto status petition, the issue of father’s visitation, and the question of why the department was persisting with the Interstate Compact on the Placement of Children (ICPC) evaluation of the grandmother’s home. The court then stated it would put the matter over for three weeks, and ordered the social worker to be in court to address the issue of father’s visitation, what progress had been made in the children’s counseling with regard to that issue, and whether they had any reason to persist with the ICPC request. When the court asked if any other issues should be addressed and if three weeks seemed like a reasonable time, father’s counsel replied, “Yes, your honor. Then we can get update[d]. That’s what we were gonna request.” The court added that they really needed the social worker in court, that it could not delegate authority to a therapist or the children for visitation, and that the court needed to “make a decision based on whether visitation is good, bad or indifferent.” The court asked whether father was not having visitation because it was detrimental or because the children just did not want it. The court then rhetorically asked, if the children did not want visitation, what was being done to “help facilitate the barriers to the children’s having further contact with their parent.” The court set the continued hearing for May 11, 2007.

May 11, 2007, Hearing

The social worker filed an addendum report prior to the May 11, 2007, hearing and reported that, according to Rim Family Counseling therapist Dustin Harris, the children had serious fears about visiting father. The social worker stated that forcing the children to attend visits, even with a therapist supervising, would be detrimental and would impact the children’s trust of the therapist and foster parents. The social worker attached four letters from the previous therapist (Rossbach), showing that the issue of visitation with father and the children’s feelings toward father were addressed in therapy.

At the May 11, 2007, hearing, father was represented by counsel. The court began the hearing by stating that the matter was continued from April 20, 2007, to address the reason for the suspended visitation with father and the issue of the ICPC. The court noted that it had reviewed the file the previous day and found this court’s decision upholding the suspension of visitation. The court reiterated the issue concerning the ICPC and then asked if counsel wished to be heard. Counsel for the children stated that the children did not want to live with the grandmother and that they did not want to visit with father. Counsel for the children asked the court to follow the recommendations. The court specifically asked about the ICPC, and the children’s counsel said it was a futile act. The court then asked if anyone else wished to be heard. Father’s counsel objected to the ICPC and stated that, in reading the addendum report, the latest information addressing visitation with father was from October. She asked why there was not any more recent information. The court then discussed the previous appeal and stated that it apparently would take a section 388 petition to reinstate visitation.

After a brief exchange with the department’s counsel and counsel for the children, the court asked whether father was now required to file a section 388 petition to vacate the suspension. Counsel for the children responded, “that’s probably his only way to do it,” and the court agreed. The court then addressed the de facto petition and asked if anyone wished to be heard. Father’s counsel said, “I have no comment.” The court proceeded to discuss the de facto petition with the department’s counsel and counsel for the children. The court granted the de facto petition, and then recounted its previous inquiry as why visitation was suspended. It stated that, in view of the decision by this court affirming the visitation order, the visits were clearly suspended because they were detrimental. It then said, “So that issue is resolved.” The court went on to address the ICPC again. After ordering the department not to proceed with the ICPC, the court finally asked if anyone wished to be heard as to the April 20, 2007, and addendum report. No one had any comments. The court then adopted the recommended findings, ordered that the children continue as dependents of the court and remain in their foster home, and ordered father’s visits to remain suspended as detrimental, since there had not been a showing of a change of circumstances.

Section 388 Motion

On May 30, 2007, father filed a section 388 petition requesting the court to change the orders suspending visitation and terminating reunification services. Father requested the court to reinstate reunification services and visitation in a therapeutic setting, and requested that the children’s therapy address issues they had with him. As to changed circumstances, father alleged that: 1) he completed a parenting education program; 2) he had been participating in a 12-step program since January 2007; and 3) he had begun an outpatient substance abuse program. As to best interests of the children, father alleged that he had made significant progress in dealing with issues that led to the dependency and that he had “changed himself on a personal level, such that, following appropriate therapy for his children and initiation of visitations with his children in a therapeutic setting, [he] can provide a caring, loving and risk free home to the benefit of his children.”

The court summarily denied the request because it did not state new evidence or a change of circumstances as to the children, and it did not show that it would be in the children’s best interests to change the orders. As to other reasons for denying the request, the court referred to the April 20, 2007, status review report, the May 11, 2007, addendum report, and this court’s opinion in the previous appeal.

On July 3, 2007, father filed a notice of appeal with regard to the court’s denial of the section 388 petition.

ANALYSIS

I. Father Never Requested an Evidentiary Hearing Regarding the Reinstatement of Visitation at the Postpermanency Hearings

In his opening brief, father states that he “indicated” to the court that he wanted a contested hearing with respect to the issue of visitation. Then, in his reply brief, he claims that the continued hearing on May 11, 2007, “was held as a result of [his] request for an evidentiary hearing as to the continuing denial of visitation.” He argues that the court erred in refusing to allow him to proceed with the hearing, and in requiring him to file a section 388 petition before it would address the reinstatement of visitation. We find no error.

Father’s claims are completely untenable and unsubstantiated by the record. Father asserts that he pointed out the department’s apparent failure to follow the court’s order to address the issue of visitation in the children’s therapy sessions. The record does show that father pointed out that issue at the April 20, 2007, hearing. However, after that remark, the court proposed to continue the matter for a further postpermanency review hearing to address the issue of father’s visitation, as well as the de facto petition and the question of why the department was persisting with the ICPC evaluation. The court then stated it would put the matter over for three weeks, and ordered the social worker to be in court to address the issue of father’s visitation and what progress had been made in the children’s counseling with regard to that. When the court asked if any other issues should be addressed and if three weeks seemed like a reasonable time, father’s counsel simply replied, “Yes, your honor. Then we can get update[d]. That’s what we were gonna request.” (Italics added.) Contrary to father’s claims, the record demonstrates that he merely requested an update on whether the issue of visitation with him was being addressed with the children in therapy. He never requested an evidentiary hearing on the issue of the reinstatement of visitation. Moreover, at the continued hearing on May 11, 2007, the only question father’s counsel raised was why there was not more recent information in the social worker’s report “addressing issues with father and his visits.” Moreover, contrary to his claim, the record does not demonstrate that the court ever refused to allow father to proceed with the hearing.

Father relies upon In re Kelly D. (2000) 82 Cal.App.4th 433 (Kelly D.) in support of his claims, but that case is factually distinguishable. In Kelly D., the Human Services Department (HSD) proposed a reduction in visitation between the father and his children at a postpermanency hearing. The HSD failed to provide the father with any prior notice of its intention to seek a reduction in visitation at the hearing. (Id. at p. 437.) The father opposed the reduction in visits and asked for a contested hearing on the issue. The court denied the request and simply ordered the reduction. (Id. at p. 436.) The Court of Appeal held that the father was entitled to a contested hearing under section 366.3, and that the juvenile court’s failure to comply with the father’s request resulted in a miscarriage of justice under the circumstances of that case. (Kelly D., supra, at pp. 439-440.) Thus, the reasons the Kelly D. court remanded that case were that the father was not given advanced notice of the proposed modification in the order, and he was denied any opportunity to contest the modification. (Ibid.)

In contrast, the court in the instant case never precluded father from contesting the visitation order suspending his visitation. Rather, the children’s counsel suggested that father had to file a section 388 petition to vacate the suspension, and the court agreed. Assuming arguendo that father did attempt to contest the visitation order at the postpermanency hearing and the court erroneously refused to consider the issue at that time, any error was harmless. The court allowed father to file a section 388 petition to seek modification of the visitation order, and father did so.

II. The Court Properly Denied Father’s Section 388 Petition

Father contends that the court erred in summarily denying his section 388 petition. We disagree.

A. Standard of Review

“We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).)

B. There Was No Abuse of Discretion

The parent seeking modification “must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citations.]” (Anthony W., supra, 87 Cal.App.4th at p. 250.)

Father failed to make the showing necessary to obtain a hearing. In his section 388 petition, filed on May 30, 2007, father requested the court to reinstate reunification services and visitation in a therapeutic setting, and requested that the children’s therapy address issues they had with him. As to changed circumstances, he alleged that: 1) he completed a parenting education program; 2) he had been participating in a 12-step program since January 2007; and 3) he had begun an outpatient substance abuse program. Father showed that, at most, he was in the process of addressing his 26-year-long substance abuse problem. He had only recently begun participating in a 12-step program. We note that during the dependency, father started and was discharged from at least four different outpatient drug/alcohol treatment programs for nonattendance. Thus, in the absence of alleging abstinence, father had not shown any real reform. Furthermore, father did not submit any evidence to show that he had addressed his anger management issues. Justin had previously reported that father was always angry and yelling, both children were afraid of father, and the social worker opined that father had serious problems with anger and dealing with his emotions. Since the children apparently did not want to visit father for fear of his anger, father should have made some changes in this respect.

In addition, father’s petition did not demonstrate how a change in the visitation order would be in the children’s best interests. The petition merely alleged that father had made significant progress in dealing with issues that led to the dependency and that he had “changed himself on a personal level, such that, following appropriate therapy for his children and initiation of visitations with his children in a therapeutic setting, [he] can provide a caring, loving and risk free home to the benefit of his children.” Apart from the self-serving statement that he had “changed himself on a personal level,” father provided no evidence to show how he had actually changed.

We further note that one of father’s requests in the section 388 petition was for the children to address the issues they had with him in therapy. The evidence clearly showed that the issue of visitation with father was addressed repeatedly in therapy. Nonetheless, the children still had serious fears about visiting father, and the evidence showed that forcing them to do so would be detrimental.

We conclude that the court did not abuse its discretion in denying father’s petition.

DISPOSITION

The order is affirmed.

We concur: RAMIREZ P. J., KING J


Summaries of

In re Justin D.

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E043497 (Cal. Ct. App. Jul. 29, 2008)
Case details for

In re Justin D.

Case Details

Full title:In re Justin D. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 29, 2008

Citations

No. E043497 (Cal. Ct. App. Jul. 29, 2008)