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In re Maryjane R.

California Court of Appeals, Sixth District
Mar 27, 2008
No. H031988 (Cal. Ct. App. Mar. 27, 2008)

Opinion


In re MARYJANE R., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. GABRIEL R., Defendant and Appellant. H031988 California Court of Appeal, Sixth District March 27, 2008

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. JD17271

RUSHING, P.J.

Statement of the Case

At an interim hearing on visitation in a dependency case, the court continued a previous order denying Gabriel R. (father) visitation with his daughter Maryjane R., finding that it would be detrimental to her. (See Welf. & Inst. Code, §§ 366.21, 395.) Father appeals from the order. He claims the juvenile court abused its discretion.

All unspecified statutory references are to the Welfare and Institutions Code.

In his opening brief, Father purports to appeal “from an order terminating parental rights pursuant to Welfare and Institutions Code section 366.21 . . . .” (Italics added, fn. omitted.) However, the termination of parental rights is governed by section 366.26, not 366.21, which pertains to review hearings after a minor has been declared a dependent of the court under section 300. Moreover, the record does not contain an order terminating father’s parental rights. Nevertheless, the notice of appeal accurately states that father appeals from the order denying visitation.

We affirm the order.

Background

The minor was born in January 1996. Thereafter, mother surrendered custody of the minor to father because of mother’s incarceration for drug-related offenses. The minor lived with father until June 2006, when he gave written temporary custody to Sonya R., the minor’s paternal aunt, because he was facing an impending arrest on drug-related charges.

Detention and Jurisdiction

In July 2006, the minor visited her grandmother (grandmother) in New Mexico. Before returning to Sonya, the minor told her grandmother that father had “touched her down there” twice two years before. She said that she had been too afraid of him to say anything before. Grandmother reported the accusation to the minor’s mother, and the disclosure then spread to other family members and father. Grandmother also reported the minor’s disclosure to the Santa Clara County Department of Child and Family Services (the Department).

When the minor returned to Sonya, Sonya told her she did not believe her story and allowed father to have contact with her. Father’s family told the minor she was “tearing the family apart” and “ruining (her) father’s life.” Father told her that he wanted to shoot himself and did not want to see her. After this, the minor cried frequently, she was unable to eat or sleep, and she became withdrawn. On July 25, 2006, a social worker, Colleen Sexton, visited Sonya and spoke to her, the minor’s paternal grandmother, and the minor.

The minor told Sexton that father had touched “her private place under the clothes” twice, once in July 2004 and again around Christmas or her birthday in 2004 or 2005. She thought father was under the influence both times and thought she was asleep. She said she had disclosed the molestation to her grandmother, mother, and Sonya, but her mother and Sonya did not believe her. She said Sonya still allowed contact with father, and in the past two days, she had confronted him about the touchings. He was shocked and told her he did not believe her.

Sonya said that she did not believe the minor’s accusations. She said that grandmother had “brainwashed” the minor. The minor’s paternal grandmother did not believe the incidents had happened and said she had told the minor that she did not believe her.

In response to the minor’s disclosure, Sexton called the San Jose Police Department. An officer privately interviewed the minor and then took her into protective custody, noting that father still had access to her and the living situation might be unsafe.

On July 27, 2006, the Department filed a petition under section 300 to declare the minor a ward of the court. The petition alleged that father had molested the minor; mother was aware of the minor’s accusation and had done nothing about it; mother and father had failed to protect the minor; and the minor was suffering serious emotional trauma. (§300, subs. (b), (c), and (d).) After a hearing on July 28, 2006, the court maintained the minor’s protective detention. It ordered father to have no contact with the minor and authorized the minor’s placement with her maternal aunt and uncle, Karla and Vincent L.

The minor requested and consistently sought placement with her grandmother in New Mexico. Although mother was willing to accept such a placement, father did not. He opined that grandmother was not fit to be a grandmother and said negative things to the minor about father’s family.

During a videotaped interview with the police on August 1, 2006, the minor explained that the first touching occurred around July 4, 2004. Father was lying next to her on the ground and put his hand under her clothing and touched her “privates.” The second incident occurred around Christmas. She was sleeping next to him in her paternal grandmother’s bed, and he put his hand inside her underwear.

In an interview on August 15, 2006, father admitted that he was currently using methamphetamines every other day but said he hoped to get back into drug treatment and promised to call his probation officer. He denied the charges of molestation. He believed grandmother had coaxed the minor into accusing him of molestation because she was still mad at him. He explained that he did not want the minor to spend time with grandmother. At one point he had told the minor to ask grandmother about an old boyfriend of hers, who, father claimed, had molested the minor’s mother. Father said that he could not remember telling the minor that he would shoot himself and did not want to see her. He said he was still shocked by the accusation and could not understand why this was happening.

At that time, father was subject to an arrest warrant for having left a court-ordered drug treatment program.

Later in August, father was released from jail and began living in a sober living environment, participating in drug treatment, attending daily Narcotics Anonymous meetings, and submitting to random drug testing.

The jurisdiction hearing commenced on August 17, 2006, and was continued to September 14. Having before it all the evidence summarized above, the court found the allegations in the petition true, assumed jurisdiction, and adopted various dispositional orders. Among other things, it placed the minor with her aunt Karla and uncle Vincent. It directed the Department to refer the minor for counseling. And, in addition to parenting classes, drug counseling and substance abuse programs, and random drug testing, it directed father to attend a sexual abuse offenders program. The court ordered reunification services for both parents. Although the Department recommended that father have weekly one-hour supervised visitation with the minor, the court found that visitation would be detrimental and barred visitation with the minor until further order of the court.

Review Hearings

Laura Coscarelli, another social worker, prepared a report for an interim review hearing on November 2, 2006. She stated that the minor did not want contact with father because she was afraid to see him. She also did not want to see his relatives because they did not believe her. The minor wanted to live with her grandmother in New Mexico. Father continued to deny the molestation, reiterated that grandmother had put the idea into the minor’s head, and insisted that when he was not using drugs, he had been a good father. He said that he wanted to see the minor and talk to her. Except for infrequent drug testing, father had generally complied with the court’s orders.

Because of the minor’s fear of father, Coscarelli opined that contact would be detrimental. She recommended continued suspension of visitation until it was deemed therapeutically appropriate. She further opined that although father loved the minor and was committed to reunification services, he appeared to have difficulty accepting responsibility for his conduct and empathizing with the minor. He also continued to blame others

After the hearing, the court continued its previous disposition, including the no-contact order.

Coscarelli prepared a second interim report and a subsequent addendum for a review hearing on January 8, 2007. She noted that on November 10, 2006, despite the no-contact order, father had called the minor’s uncle and spoken to the minor for an hour, which surprised her and made her nervous. They talked about her brother, and father said he was not mad at her. She became sad and said she wanted to talk to him but did not know if it was possible. Father later asked Coscarelli to tell the minor that it was OK for her to talk to him. However, Coscarelli reminded him of the no-contact order.

Coscarelli opined that the minor loved her father, but her feelings toward him remained confused due to the trauma of being molested and warranted therapeutic intervention in a safe environment, which had not yet taken place. She believed that father meant well in speaking to the minor but noted that he still denied the abuse.

Coscarelli received permission from the court to arrange for the minor to visit grandmother for Thanksgiving, the Christmas holidays, and her winter break in February. Father opposed the visits. Coscarelli made repeated attempts to have father sign consent forms so that the minor could begin therapy, but he declined to sign the forms so Coscarelli sought consent from the court. The minor started therapy in January 2007.

After the review hearing, the court continued the previous disposition, including the no-contact order.

In her report for the six-month review hearing on March 7, 2007, Coscarelli noted that the minor had just begun therapy, but the therapist had not yet formulated treatment goals, and the minor had not begun to process her feelings about father’s abuse. The minor was doing well at school and at home with her aunt and uncle. She still wanted to live with grandmother and did not want to see father. Coscarelli did not think visitation was appropriate yet.

Concerning father, Coscarelli noted that he had tested positive for drugs in January 2007. Nevertheless, she opined that he loved the minor, was dedicated to reunification, and committed to his case plan. He was now willing to participate in a perpetrator’s program involving counseling. Coscarelli further opined that father was still struggling with admitting his responsibility. She noted that he had offered a number of interpretations for what had happened and called it an accident. For example, he said that he did not remember doing anything to the minor until someone named Jennifer said something to him recently that reminded him. He said that he had been asleep and rolled over and touched the minor thinking she was his ex-girlfriend. Coscarelli could not understand how father could have forgotten the incident and opined that he was attempting to reduce the seriousness of it. However, she hoped that his participation in a perpetrator’s program and counseling would help him acknowledge his role and learn to be a safe parent.

After the hearing on March 7, 2007, the court ordered further reunification services and continued the no-contact order until therapy indicated that visitation would not be detrimental.

In a report for an interim hearing on May 16, 2007, Coscarelli stated that the minor was progressing in her therapy and beginning to develop the skills needed to deal with her feelings about father’s abuse. At that time, the minor indicated that she still felt afraid that he would abuse her again. She had mixed feelings about wanting to see father. She was worried that if she saw him, she would not be able to live with grandmother. Coscarelli opined that it would be better for minor to continue addressing her issues in therapy before visitation was allowed. Coscarelli also recommended that the minor be placed with grandmother because they had a close relationship, and the minor very strongly wanted to live with her.

Coscarelli noted that father had begun to work with a therapist on issues, including taking responsibility, seeing how he might have been selfish with the minor, and understanding her feelings. However, financial limitations prevented him from attending all of his therapy sessions. His therapist thought that with more sessions he would be ready for one visit to see how the minor reacted to him.

After the hearing on May 16, 2007, the court ordered the continuation of previous orders, prohibited anyone from talking about the case with the minor, and found that visitation at that time would still be detrimental. The court postponed considering the new placement until the next hearing.

In a report for the next hearing on June 11, 2007, Coscarelli noted that the minor could not wait to live with grandmother. She knew she would not be able to see her brother and mother as much but wanted to move anyway and thought she could talk to them on the phone. The minor did not think it was a good idea to see father and was glad the court had continued the previous order. Her therapist said he was still working with the minor on a trauma narrative and starting to look more closely at her feelings about father. He did not believe contact with father was appropriate at this time.

Coscarelli also reported that father wanted the minor to be happy and so he did not oppose the placement with grandmother. He hoped that grandmother would take good care of her. He also said he knew that he had hurt her and saw why she did not want to see him.

After the June 11, 2007 hearing, the court approved the minor’s placement and continued the previous orders. At father’s request, the court set a contested hearing on visitation. On June 29, 2007, Coscarelli took the minor to her grandmother in New Mexico.

The contested visitation hearing took place on July 20, 2007, and August 7.

Timothy Kimball, the minor’s therapist, testified that he had a Masters Degree in clinical psychology and was still working toward his Ph. D. He was a supervised therapist at E.M.Q. Children and Family Services, where he had worked with 30 to 40 victims of sexual abuse. He saw the minor weekly between January and July 2006. He used a cognitive behavioral therapy model, which focused on helping children learn skills to deal with the consequences of trauma resulting from abuse. He stopped seeing the minor when she relocated to New Mexico. At that time, the minor had prepared a narrative to give to her new therapist. Generally, a narrative is produced during the middle stage of the therapeutic model.

Kimball did not feel qualified to made a determination concerning whether it would be detrimental for the minor to have contact with father because it was a legal decision not within the scope of his role as a therapist. However, he reiterated his previous opinion that the minor would benefit from being able to further process her feelings before she had any contact with father. He said that the minor had told him that she was afraid he would abuse her again, and he explained that there are many issues that could come up while the minor processed her feelings that would make further therapy beneficial. He testified that the minor had mixed, conflicting emotions about having contact with father.

Laura Coscarelli also testified. She is a licensed clinical social worker who had testified as an expert in dependency proceedings in the area of child risk assessment. The court accepted her as an expert witness in that area.

Coscarelli testified that the Department recommended a finding that visitation at this time would be detrimental and continue the no-contact order. She said that there were several reasons for that recommendation: (1) the minor had a diagnosis of post-traumatic stress disorder; (2) the minor had consistently said that she did not want contact with father; (3) despite being a funny, engaging, happy-go-lucky girl, when visitation was mentioned, she had exhibited signs of significant anxiety and fear; (4) on several occasions, she had said that she was afraid father would hurt her again; and (5) forcing her to see father when she did not want to see him and was not ready to do so could be emotionally damaging.

Coscarelli also explained that in assessing whether visitation was appropriate, she considered father’s progress in his case plan. Her biggest concern was that he had not completed a sexual perpetrator’s program and individual counseling. She noted that he had dropped out of the program in May 2007. She testified that the program was crucial for father to gain an understanding of his role and take responsibility for the sexual abuse. She reported that father had not demonstrated to her that he had done so yet or made significant progress, which caused her to be concerned about visitation.

Father testified and denied molesting the minor. He understood that she had accused him and did not want to force her to see him. However, he wanted the minor to know how he was doing, which might encourage her to want contact. In this regard, he pointed out that he had a full-time job, was attending school part-time, and had a house where the minor would have her own bedroom. He said that at a minimum, he wanted to write the minor a letter.

Concerning the alleged abuse, father said that one night three years before, he had had a fight with his girlfriend, and she went to sleep in the living room. The minor came into his bed early that morning, and, thinking it was his girlfriend, he put his hand into her pants. When he realized it was the minor, he got hysterical, swore at her, and told her to leave. She ran out. Because he had unintentionally touched her, he opined that it was not abuse. Later, he did not know how to address what had happened and was so humiliated that he blocked it out of his mind.

Father said that he had dropped out of his case plan because every time he came to court he felt like a fool, his achievements were ignored, and he was treated wrongly.

The court found that visitation at that time would be detrimental and continued the no-contact order. The court noted that it had found the allegations of sexual abuse true. It noted that the minor had experienced significant trauma from both the molestation and the reaction of father and her paternal relatives. It pointed out that the minor had made progress in therapy dealing with the trauma; but given the stage of the minor’s therapeutic process, her therapist did not consider contact appropriate yet.

The court also observed that father was not currently involved in a program for perpetrators or actively involved in recovery for drug abuse and had expressed much resentment toward the court system and the social worker. Moreover, although father wanted contact with the minor, he had not shown an interest in understanding her situation and how she viewed her recovery. Rather, he wanted her to see know how well he was doing. On the other hand, he agreed that the minor should not be forced to see him.

The court acknowledged that visitation did not depend on whether the minor wanted it. However, it found that the minor’s feelings were a relevant consideration. The court’s primary concern was the minor’s well being. The court opined that visitation during the reunification process presupposes that the parent will not drop out of recovery and treatment efforts in response to the court’s determination that contact would be detrimental but would instead make an even greater effort to do what was necessary to help the minor recover from trauma and thereby demonstrate that visitation was appropriate.

Based on Kimball’s and Coscarelli’s testimony concerning the minor’s therapeutic progress at this point, the minor’s continued expression of fear concerning contact, and father’s withdrawal from treatment, the court concluded that visitation would be detrimental. The court suggested that father recommence treatment and said it would revisit the issue of visitation at a later review hearing.

Discussion

Father contends that the court abused its discretion in finding that visitation would be detrimental. In essence, he claims that when viewed in light of the entire record, the finding is not supported by substantial evidence, and the court’s ruling exceeded the bounds of reason.

Generally, visitation is an essential component of any reunification plan because the problems faced by parents in a dependency proceeding often cannot be resolved without ongoing therapy and visitation. (In re Luke L. (1996) 44 Cal.App.4th 670, 679; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138; see § 362.1, subd. (a)(1)(A) [visitation required as part of reunification plan].) Indeed, a lack of visitation may “virtually assure[ ] the erosion (and termination) of any meaningful relationship” between a parent mother and child. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407.) Thus, absent a showing of detriment, it is ordinarily improper to suspend or halt visits even after the end of the reunification period. (In re Luke L., supra, 44 Cal.App.4th at p. 679; In re David D. (1994) 28 Cal.App.4th 941, 954; § 366.21, subd. (h).)

“A juvenile court’s determination as to whether parental visits are in the best interests of a dependent child may be reversed only upon a clear showing of abuse of discretion.” (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465; see In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352.) Discretion is when the court’s determination exceeds the bounds of reason or is not supported by substantial evidence. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Mark L. (2001) 94 Cal.App.4th 573, 581.) However, “ ‘ “[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at p. 319.)

Here, we find that the court’s ruling is supported by substantial evidence and does not exceed the bounds of reason. In particular, the record supports the court’s finding that the minor had suffered trauma from the abuse and emotional distress from her paternal relatives’ reaction to her allegations and had not yet adequately addressed her trauma and feelings toward father. The record further supports the court’s finding that father viewed himself as the victim of these proceedings and this plus his failure to follow through on his case plan demonstrated a lack of understanding of and empathy for the minor’s trauma and an unwillingness to do whatever might be necessary to regain visitation. Under the circumstances, including the minors continued expressions of fear and feelings against contact, the court reasonably could conclude that visitation would be detrimental, in that it posed a substantial risk of exacerbating the minor’s trauma, complicating her therapeutic process, and creating new anxiety and emotional distress.

Father’s cites Los Angeles County. Department of Children and Family Services v. Superior Court (2006) 145 Cal.App.4th 692. He notes that there the abuse was more egregious. Moreover, even though the offending parent appeared reluctant on some level to reveal and explore family dynamics, minimized his participation in the abuse, and was unwilling to address core issues, the court permitted visitation with the child victim. (Id. at p. 697.) He argues that the circumstances here “are not as severe as those presented in [that case].”

In our view, the facts of each dependency case are unique, making it appropriate to review the determinations of detriment on a case-by-case basis in light of the particular facts and circumstances. (See, e.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Moreover, we agree with the Department that Los Angeles County. Department of Children and Family Services v. Superior Court, supra, 145 Cal.App.4th 692 does not establish a baseline for comparison. ~(Department RB 23)~ Nor does it convince us that the record does not support the juvenile court’s finding of detriment or that its ruling to continue the no-contact order exceeded the bounds of reason.

Disposition

The order barring visitation between father and the minor is affirmed.

WE CONCUR: PREMO, J., ELIA, J.


Summaries of

In re Maryjane R.

California Court of Appeals, Sixth District
Mar 27, 2008
No. H031988 (Cal. Ct. App. Mar. 27, 2008)
Case details for

In re Maryjane R.

Case Details

Full title:SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff…

Court:California Court of Appeals, Sixth District

Date published: Mar 27, 2008

Citations

No. H031988 (Cal. Ct. App. Mar. 27, 2008)