Opinion
D041834.
10-1-2003
In re M. M. C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M. C., Defendant and Appellant.
M. C., father of M. M. C., appeals the juvenile courts findings and orders in which the court terminated reunification services and ordered a permanent plan of long-term foster care. M. C. contends the court erroneously excluded relevant testimonial and documentary evidence. M. C. also contends the evidence was insufficient to support the following findings by the court: (1) returning Maurice to his father would create a substantial risk of detriment; (2) there was no substantial probability that M. C. would be able to reunify within the time remaining for reunification; and (3) reasonable services had been provided. We affirm.
M. M. C.s middle name "Maurice" was used throughout the proceedings and we shall use it as well for ease of reference.
PROCEDURAL AND FACTUAL BACKGROUND
Maurice was born in December 1995 while his mother was serving a prison term for involuntary manslaughter of a child she was babysitting. Maurice was raised solely by M. C. since birth.
In October 2001, a neighbor made allegations that M. C. had molested her four-year-old son, who was a friend of Maurice. The San Diego County Health and Human Services Agency (Agency) filed a petition under Welfare and Institutions Code section 300, subdivision (d), alleging M. C. had sexually abused Maurice and the neighbor child.
From the beginning of the case, M. C. has denied he molested either child. However, M. C. admitted he had an addiction to sex and pornography and masturbated while watching pornographic movies. M. C. also acknowledged that Maurice had walked in on him while he was viewing a pornographic movie and masturbating.
M. C. also related that he had a history of picking up prostitutes. M. C. told a therapist that once Maurice walked in when he was engaged in sexual intercourse with a woman; the adults continued while Maurice watched.
After M. C. passed a polygraph test on the molest allegation, the section 300, subdivision (d) allegation in the petition was amended to read: "On or about June 2001 to present the childs father had a sexual addiction to pornography which places his child at risk of inappropriate sexual activity." The court sustained the petition as amended, declared Maurice a dependent of the court, and removed Maurice from his parents custody under section 361, subdivision (c)(1). Maurice was placed in a confidential foster home. The court ordered supervised visitation and reunification services for M. C., including individual counseling, sex addiction group therapy, and parenting education.
Maurice had four different foster home placements by the time of the six-month review hearing. Maurice engaged in aggressive violent behavior and inappropriate sexual behavior. On one occasion, Maurice pulled down his pants at school and exposed his genitalia. Meanwhile, M. C. completed his parenting education and was enrolled in sex addiction group therapy conducted by Larry Corrigan, a licensed clinical social worker. M. C. also received individual therapy from Corrigan. Corrigan recommended that M. C. attend more individual therapy sessions to be able to parent his son and refrain from exposing the boy to pornography. M. C. attended SAA (Sex Addicts Anonymous) and AA (Alcohol Anonymous) meetings, and saw a Veterans Administration psychiatrist for depression.
On August 12, 2002, after a contested six-month review hearing, the court found return of Maurice to parental care would be detrimental and the services provided had been reasonable. The court ordered an additional six months of services after finding M. C. had made substantive progress in alleviating the problems that led to Maurices removal.
This court affirmed the courts orders. (In re M. C., Jr. (Jan. 6, 2003, D040640) [nonpub. opn.], mod. Jan. 16, 2003.)
M. C. stopped attending individual therapy sessions with Corrigan in August because he believed Corrigan viewed him as a child molester. M. C. continued to attend Corrigans group therapy sessions, finding them valuable. In September, M. C. began individual therapy with John Spicer, a psychologist.
During the next six months, Maurice continued his aggressive, violent behavior and he was moved to a group home and latter a foster family agency home. Maurice underwent a psychological evaluation in October and was diagnosed as having ADHD (attention deficit hyperactivity disorder) with an adjustment disorder and expressive language disorder. The evaluator recommended Maurice be placed in a structured environment. There were no new incidents of sexual acting out behavior.
Agency recommended services be terminated at the 12-month review hearing. The social worker reported M. C. continued to verbally threaten and use profanity in dealing with Agency employees and foster parents. Spicer reported that M. C. was making minimal progress in understanding his sexual compulsivity and the role of a parent in provident adequate supervision and protection. Spicer opined that M. C. had not shown the progress necessary to insure his sons needs were met.
M. C. was regularly attending individual therapy sessions with Spicer, but missed eight group therapy sessions with Corrigan between August and December. In January 2003, M. C. resumed his regular attendance at the group therapy sessions. In March, Corrigan reported that M. C. was making progress but still had "a long way to go." M. C. had not expressed remorse for causing Maurice to become a dependent of the juvenile court.
At the contested 12-month review hearing, the social worker opined M. C.s sex addiction continued to pose a risk to Maurice and there was not a substantial probability the child could be returned by the 18-month date. Corrigan testified that M. C. had completed three relapse prevention tasks, was making more progress in therapy than he had in the past and was participating at a "satisfactory level." M. C. had reported he had not relapsed regarding pornography and prostitutes, but Corrigan had no way to verify this. Corrigan opposed returning Maurice to M. C. M. C. had not yet demonstrated sufficient empathy and perspective-taking skills and had not demonstrated the ability to provide appropriate structure for Maurice, Corrigan testified.
Both Corrigan and Spicer opined that M. C. was not ready for unsupervised visits with Maurice.
The court found a return of the child to parental custody would be detrimental, there was not a substantial probability of return by the 18-month date and reasonable services had been provided. The court terminated reunification services and ordered long-term foster care as Maurices permanent plan after finding that Maurice was not likely to be adopted, and there was no one willing to assume legal guardianship.
DISCUSSION
I. Exclusion of Evidence
M. C. contends the courts exclusion of relevant and material evidence deprived him of a fair trial and warrant reversal. The contention is without merit.
First, M. C. argues the court erroneously sustained objections to questions posed by his counsel during cross-examination of the social worker. Second, M. C. challenges the exclusion of various letters written on his behalf. We consider these complaints seriatim.
A. Limit on Cross-Examination
On direct examination, social worker Herbert Onyegbule testified he had reviewed the case file, including the petition. On cross-examination, M. C.s counsel asked Onyegbule if he was aware the language of the petition was amended. The court sustained Agencys objection on relevance grounds and later said it was sustaining the objection under Evidence Code section 352. The following day when M. C.s counsel brought up the matter again, the court reiterated its Evidence Code section 352 ruling.
Evidence Code section 352 permits the court to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The trial court has wide discretion when determining whether Evidence Code section 352 precludes the admission of evidence, and its exercise of discretion will be disturbed on appeal only if the courts decision exceeded the bounds of reason. (People v. Mobley (1999) 72 Cal.App.4th 761, 792-793.) A reviewing court will not find an abuse of discretion unless the lower court made an "`"`"arbitrary, capricious, or patently absurd determination. . . .""" (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176,)
Moreover, trial courts have discretion to work within existing guidelines to determine the admissibility of evidence. (See Wagner v. Benson (1980) 101 Cal.App.3d 27, 36.)
"While a parent in a juvenile dependency proceeding has a due process right to a meaningful hearing with the opportunity to present evidence [citation], parents in dependency proceedings are not entitled to full confrontation and cross examination. [Citation.] Due process requires a balance. [Citation.] The states strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence [citation], such as when the presentation of the evidence will necessitate undue consumption of time. [Citation.] The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court." (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147; see also Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 759-760 [parents right to due process is limited by the need to balance the "interest in regaining custody of the minors against the states desire to conclude dependency matters expeditiously and . . . exercise broad control over the proceedings"].)
We discern no abuse of discretion. M. C. wanted to pursue this line of questioning during cross-examination of the social worker to establish Agency and the service providers were viewing him as a child molester rather than a sex addict and thereby persuade the court he was not provided with reasonable services. However, the main issue at the contested 12-month review hearing was whether Maurice could safely be returned to M. C.s custody. (§ 366.21, subd. (f).) The focus on the hearing properly was on what had happened in the proceeding six months, not the initial sex molestation allegation that was dismissed. Furthermore, the court told M. C.s counsel that he could argue that point with regard to the reasonableness of the services provided. As the Court of Appeal noted in In re Ingrid E., supra, 75 Cal.App.4th at page 760: "Doubtless it is reasonable for the court, in pursuit of its statutory duties, to ascertain the issues relevant to the hearing and make some relevancy determinations [given] that time is not an unlimited commodity in todays busy juvenile courts."
We also find no denial of due process. M. C. was not denied the right to confront and cross-examine the social worker. In fact, M. C.s counsel thoroughly cross-examined the social worker, as borne out by the 33 complete pages in the reporters transcript covering the cross-examination. The trial court sustained some of the objections lodged by Agency and counsel for minor, and overruled others. The suggestion that M. C. was denied his right to cross-examination is unfounded. Due process requires a fair proceeding with the parent having a meaningful opportunity to present his or her case. (In re Ingrid E., supra, 75 Cal.App.4th at p. 757.) M. C. received a fair hearing in which he was able to make his case.
Notwithstanding M. C.s unpersuasive attempts to characterize this as a due process deprivation, we have been presented with a purported erroneous exclusion of evidence. As indicated above, we find no abuse of discretion and no error. However, even if we were to find to the contrary, M. C. cannot prevail. A finding will not be set aside or a decision reversed by reason of the erroneous exclusion of evidence, unless the error resulted in a miscarriage of justice. (Evid. Code § 354.) There was no miscarriage of justice. The experts unanimously agreed that Maurice could not be safely returned to M. C. either at the time of the hearing or within the normal reunification period. Moreover, the court allowed M. C.s counsel to pose this line of questioning when examining the therapists. Pursuant to the social workers direction, the main focus of the service providers was addressing M. C.s admitted sex addiction, not the dismissed allegation of child molestation.
B. Exclusion of Letters
Of 17 documents M. C. marked as exhibits, the court received two in evidence. The court admitted a letter from Suzan P., who stated she had known M. C. for nine years and was a friend in substance abuse recovery. Suzan P. further stated M. C. displayed a lot of patience and displayed good parenting skills with Maurice. The court also admitted a letter from Benny W., who stated he had known M. C. for 15 years. Benny W. further stated that M. C. was a loving, caring and devoted parent to Maurice, whom he was raising to the best of his ability as a single parent.
M. C. withdrew some of the other marked exhibits and challenges the courts refusal to admit 10 of the proffered documents. These 10 excluded documents were:
&bulsml; A letter from Joseph A., who had known M. C. for eight years. Joseph A. characterized M. C. as a caring, responsible person. Joseph A. stated M. C. put Maurice first, and he believed keeping father and son apart would be a big mistake. Joseph A. also questioned the validity of the reasons for the removal of Maurice.
&bulsml; A letter from Lawrence J., who had known M. C. for many years. Lawrence J. considered M. C. his brother and Maurice his nephew. Lawrence J. had baby-sat Maurice and was very fond of him. Lawrence J. wanted to have Maurice back in their family because families belonged together.
&bulsml; A letter from Nancy J., who had babysat for Maurice and known him since he was three years old. Nancy J. stated she allowed M. C. to baby-sit her daughter and never felt uncomfortable in doing so. Nancy J., who was not aware of the reasons for Maurices removal, stated she was confident M. C. would never do anything to harm Maurice.
&bulsml; A letter from Leslie W., who had known M. C. for 10 years. Leslie W. stated M. C. has provided for Maurice in a decent and respectable manner since he was born. Leslie W. was aware of the pornography allegations and called them "totally ridiculous." M. C. made a small mistake in allowing Maurice access to the VCR. M. C. would never do anything intentionally to harm Maurice.
&bulsml; A letter from Maryam R., who had known M. C. for 10 years. Maryam R. characterized M. C. as a good parent and person. Maryam R., who worked as a part-time teacher in a private school, stated it would not benefit Maurice to put him in permanent foster care.
&bulsml; A letter from Joe A., who had known M. C. for more than one year as a fellow participant in a sex addict recovery group. Joe A. stated that M. C. "has finally found an answer to his sex addiction, and recovery in it." Joe A. characterized M. C. as a valuable member of the recovery group.
&bulsml; A letter from Curtis M., who had been a close friend of M. C.s for nine years. Curtis M. characterized M. C. as a responsible and devoted parent with appropriate parenting skills. Curtis M. found it extremely difficult to believe that M. C. would harm Maurice or any child.
&bulsml; A letter from Sonya L., who had known M. C. for six years through a Narcotics Anonymous group, to which M. C. occasionally brought Maurice. Sonya L. described M. C. as a responsible and caring father.
&bulsml; A letter from Roland K., who had known M. C. for more than 10 years. Roland K. stated M. C. had established himself in the recovery community as a reliable person with "a meaningful message of recovery to deliver." Roland K. also described M. C. as an excellent father.
&bulsml; A letter from Jacquelyn M., who had known M. C. for 10 years and was a fellow participant in substance abuse groups. Jacquelyn M., who had baby-sat for Maurice, described M. C. as a very loving father.
The court sustained objections to these documents because they lacked foundation, lacked relevancy, contained hearsay, were conclusionary, or were cumulative under Evidence Code section 352. We have reviewed each letter and the corresponding sustained objection(s). We find no error.
II. Sufficiency of the Evidence Supporting the Courts Findings
M. C. contends there was insufficient evidence to support the courts findings that returning Maurice to his father would create a substantial risk of detriment; there was no substantial probability M.C. would be able to reunify within the time remaining for reunification; and reasonable services had been provided. The contention is without merit.
In reviewing a sufficiency of the evidence challenge in juvenile dependency cases, we employ the same substantial evidence test used in appeals of other types of cases. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We review the evidence in the light most favorable to the juvenile courts order — drawing every reasonable inference and resolving all conflicts in favor of the prevailing party — and affirm the order even if there is other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
A. Detriment Finding
At the 12-month review hearing, the court must return the child to the parents custody unless it finds by a preponderance of the evidence, return of the minor to the parent would create a substantial risk of detriment to the safety, protections, or physical or emotional well-being of the child. (§ 366.21, subd. (f).)
The therapists, who opposed both returning Maurice to M. C.s custody and unsupervised visitation, supplied more than ample evidence supporting the courts finding of substantial risk of detriment. Spicer, with whom M. C. was undergoing individual therapy, testified M. C. was making minimal progress. Spicer reported that M. C. had not developed a clear understanding of how to adequately supervise and protect Maurice. Spicer agreed with a psychological evaluation of M. C. that there was a risk M. C. might continue to place Maurice in over-sexualized situations and neglect him. Corrigan, who led the group therapy sessions, testified that M. C. lacked empathy and the ability to put another persons safety or needs ahead of his own. Corrigan opined M. C. had not progressed enough to ensure he would not relapse; Corrigan doubted that M. C. would make sufficient progress within the time frame for reunification.
B. No Substantial Probability of Return Finding
If the court finds at the 12-month review hearing, the child cannot be safely returned, it must either (1) continue the case for another review hearing that must occur no later than 18 months from the date the child was initially removed, (2) schedule a section 366.26 hearing, or (3) terminate reunification services and place the child in long-term foster care. (§ 366.21, subd. (g)(1)-(3).) To extend reunification services to the 18-month review date, the court must find there is a substantial probability the child will be returned to the parent and safely maintained in the home by that time. (§ 366.21, subd. (g)(1); see also In re Monica C. (1995) 31 Cal.App.4th 296, 304-305.) In order to find a substantial probability of return, the must find: "(A) That the parent . . . has consistently and regularly contacted and visited with the child. [¶] (B) That the parent . . . has made significant progress in resolving problems that led to the childs removal from the home. [¶] (C) The parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g) (1)(A)-(C).)
At issue was the second and third requirements; no one disputes that M. C. consistently visited Maurice. There was substantial evidence supporting the courts adverse findings on these latter two requirements. M. C. testified that he struggled on a daily basis with his addiction to pornography. Nonetheless, M. C. continued to believe his son had been unjustly removed from his custody, which in effect was a denial of the protective issues surrounding his sex addiction. The therapists testified that M. C. was making minimal progress; they did not believe that M. C. was ready for unsupervised visits with his son. Spicer opined that M. C. had not developed an understanding of how to adequately parent his son. Corrigan opined M. C. had not made enough progress to demonstrate he would not relapse; Corrigan doubted that M. C. would make sufficient progress within the 18-month time frame. The social worker also opined that M. C.s sex addiction continued to pose a risk to Maurice and there was not a substantial probability the child could be returned by the 18-month date. The court found the social worker to be an expert in risk assessment.
C. Reasonable Services Finding
At every review hearing, the court is required to determine whether reasonable reunification services were provided to the parent. (See §§ 366.21, subds. (e) & (f), 366.22, subd. (a).) At the 12-month review hearing the court "shall . . . determine whether reasonable services that were designed to aid the parent or guardian to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent or legal guardian." (& sect; 366.21, subd. (f).)
A reunification plan must be tailored to the particular individual and family and address the unique facts of that family. (In re Misako R., supra, 2 Cal.App.4th at p. 545.) "[T]he focus of reunification services is to remedy those problems which led to the removal of the children." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.) Reunification services are reasonable if Agency makes a good faith effort to address the parents problems that resulted in dependency. (See In re John B. (1984) 159 Cal.App.3d 268, 275.) We recognize that in most cases more services might have been provided, and the services that are provided are often imperfect. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We view the record in the light most favorable to Agency, indulging in all reasonable and legitimate inferences to uphold the finding. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)
Substantial evidence supports the courts conclusion that the reunification services were reasonable and tailored to M. C. and Maurice. The petition was sustained on an allegation that M. C. had a sexual addiction to pornography that placed Maurice at risk of inappropriate sexual activity. M. C.s case plan required parenting education, individual counseling, and group therapy for sex addicts — all in direct response to the amended section 300 petition.
M. C. argues "the nature of services provided were colored by the mis-impression that there had been a true finding on the molest allegations by the neighbor boy." We disagree. As indicated above, the therapists — pursuant to the social workers direction — focused their treatment on treating M. C.s sex addiction, not the molest allegations.
M. C. complains that Agency did not provide conjoint therapy with Maurice. However, Maurices therapist believed the child needed to be seen regularly on an individual basis before conjoint therapy began. M. C. blames Agency for repeatedly changing his sons placement and thus preventing Maurice from seeing the same therapist on a regular basis and establishing a stable therapeutic relationship. This criticism is not well taken. Most of Maurices placement moves resulted from his serious behavioral problems. Agency cannot reasonably be blamed for the excessive number of moves. Further, the decision when to start conjoint therapy properly rested with Maurices therapist. "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R., supra, 2 Cal.App.4th at p. 547.) Under the circumstances of this case, the lack of conjoint therapy did not make the services provided by Agency unreasonable.
M. C. also complains he was not provided services addressing his impulse control problem. But M. C. did not complain below to Agency or the court. If M. C. was unhappy with the case plan for not providing services that directly dealt with impulse control problems, he or his counsel should have brought it to the attention of Agency and the court. (See In re Christina L. (1992) 3 Cal.App.4th 404, 416.)
In sum, there is substantial evidence that reasonable reunification services, designed to aid M. C. in overcoming the problems that led to the loss of custody, were provided. (In re Mario C. (1990) 226 Cal.App.3d 599, 605.)
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., NARES, J.