Opinion
D054070
7-16-2009
In re P. A. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S. A. et al., Defendants and Appellants.
Not to be Published in Official Reports
S.A. and P.A. appeal jurisdictional and dispositional findings and orders under provisions of the Welfare and Institutions Code, sections 300 et seq.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
This appeal concerns six children, three mothers and one father. The case also involves an older child of the father, a mothers 16-year-old sister, and the mother and fathers newborn baby.
Under California Rules of Court, rule 8.400(b)(2), we are required to protect the anonymity of the parties involved in an appeal. Because many of the parties involved in this appeal have the same initials or first names that begin with the same two letters, we use a second alternative letter where necessary. Our intent is to protect the parties privacy and to avoid confusing the reader. The use of a partys initials in place of his or her first name does not indicate a lack of respect of, or desire to depersonalize, any person involved in this appeal.
P.A. (Father) is the father of PJ, KR, KL, KY, KH and Baby S, now ages 13, 10, 10, 9, 3 and almost 2 years, respectively.
Family Relationships
S.B. is the mother of daughter PJ and son KR. S.B. and Father married in 1993 and divorced in 2001.
Mary C. is the mother of daughters KL and KY and son KH. Mary began living with Father in 1997, when she was 16 years old. They married in 2004. Mary filed for divorce in 2006.
S.A. is the mother of son Baby S and daughter Baby N, who was born in August 2008. S.A. began living with Father and Mary when she was 17 years old. S.A. married Father in April 2008.
S.A. is the sister and legal guardian of J.R., who was born May 1991. J.R. began living with Father and S.A. shortly before her 16th birthday.
Prior Dependency and Family Court Proceedings
During Fathers marriage to S.B., his then five-year-old daughter, T.E., came to live with them. Shortly after PJs birth, T.E. and PJ were adjudicated dependents of the juvenile court after Father held T.E. in a bathtub filled with cold water. T.E. was hospitalized with hypothermia. She had loop-shaped lesions on her torso, indicating she had been hit with a belt. Fathers parental rights to T.E. were terminated in November 1997.
The court placed PJ with S.B. in February 1996. In May 1997 the court terminated jurisdiction and issued protective orders restricting Fathers contact with S.B. In May and June, Father and S.B., who were apparently living together, had several domestic altercations. PJ was again adjudicated dependent and removed from parental custody.
In January 1999 the court placed PJ with S.B. KR was born five months later. In January 2000 the court terminated jurisdiction and gave S.B. sole legal and physical custody of PJ, with restrictions on Fathers visitation.
S.B. and Father divorced in 2001. They continued to dispute custody of PJ and KR, with further incidents of domestic violence. In August 2004 the family court awarded Father and S.B. joint legal and physical custody of KR. At some point in time not clear in the record, Father obtained physical custody of PJ while S.B. retained custody of KR.
In May 2005, as a result of S.B.s substance abuse, KR was adjudicated dependent, removed from her custody and placed in foster care. The court offered Father reunification services.
In late 2005 or early 2006 Mary discovered Father and S.A. having sexual relations. Mary asked S.A. to leave the home. Father reacted violently and pushed Mary, who was pregnant, down the stairs. She spent four months in the hospital on bed rest.
In April 2006 the court placed KR with Father under a plan of family maintenance services. The San Diego County Health and Human Services Agency (the Agency) offered Father voluntary services for PJ, KL and KY because of concerns Father hit the children with a belt and deprived them of food. The children denied abuse. In May 2007 the court terminated jurisdiction in KRs dependency case.
When Mary returned home in May 2006, she and Father had a physical altercation about his continued involvement with S.A. Mary went into labor and gave birth to KH the next day. Within a few weeks Mary left Father, filed for a protective order and sought custody of the children. After protracted custody proceedings, in which there were multiple allegations of physical and sexual abuse by both parents against the other, the family court awarded Father sole legal custody of the children and granted Mary extended weekly visitation. Mary last saw her children in September 2007, the month the custody order issued.
Section 300 Petitions and Pretrial Proceedings
In April 2008 Fathers household consisted of S.A. and her sister J.R., then age 16, and children PJ, KR, KL, KY, KH and Baby S, then ages 12, 8, 9, 7, 1 and eight months, respectively. On April 4 the Agency removed J.R. and the children from the home and filed petitions alleging Father physically and sexually abused J.R., and the children were at risk of physical and (except Baby S) sexual abuse. (§ 300, subds. (d), (j).)
The Agency alleged that between July 2007 and March 2008, Father exposed his genitals and explicitly described his sexual experiences to J.R., and asked her to talk to him about her sexual experiences. On March 31, 2008, Father lay on top of J.R., which he admitted, and put his tongue in her ear. Father grabbed her by the buttocks and held her arm, causing her to fall to the ground. J.R. hit Father with a mop. He punched her in the face, bruising her lip.
The court detained the children in out-of-home care. With the concurrence of minors counsel, the Agency detained KL, KY and KH with Mary.
After several incidents the court permanently restrained Father from contacting PJ and placed conditions on his contact with social worker Tonya Sloan.
On July 16, 2008, the Agency filed amended section 300 petitions. On behalf of PJ, the Agency alleged Father hit and pushed PJ and caused her to fall down a flight of stairs on or about March 31, and struck her with a belt on numerous occasions. (§ 300, subd. (a).) With respect to the other children, the Agency alleged they were at substantial risk of physical abuse as a result of Fathers physical abuse of PJ. (§ 300, subd. (j).)
Father and S.A.s daughter, Baby N, was born on August 15, 2008. The court issued an order to detain the infant in protective custody. The Agency was not able to locate the baby.
The Agency recommended the court (1) remove PJ and KH from parental custody, deny reunification services to both parents, and set a permanency plan hearing under section 366.26; (2) remove KL, KY and KH from Fathers custody, and place them with Mary under a family maintenance services plan; and (3) remove Baby S from parental custody, deny reunification services to Father, and offer family reunification services to S.A.
Contested Jurisdictional and Dispositional Hearing
The contested jurisdictional and dispositional hearing was held over eight days, beginning September 29 and ending October 30, 2008. The court heard testimony from 16 witnesses, including social worker Sloan, J.R., PJ, Mary and Father. It admitted the Agencys reports and 37 exhibits, including videotaped interviews of J.R., PJ and KL at Chadwick Center for Children and Families. The court took judicial notice of T.E.s juvenile court file, Father and S.B.s family court file, and Father and Marys family court file.
Amendment of Petitions to Conform to the Proof
At the close of evidence the Agency asked the court to amend the petitions to conform to the proof. The court struck the first count alleging risk of sexual abuse under section 300, subdivision (j) because J.R. was not the childrens sibling. The court amended the section 300, subdivision (a) petition by adding a second count alleging the children were at risk of physical abuse because Father hit J.R. in the face. The court added a new count under section 300, subdivision (d), alleging the children were at risk of sexual abuse because Father sexually abused J.R.
The Courts Findings and Orders
The court found that social worker Sloan, Mary and the children were credible, and the childrens interviews at Chadwick Center for Children and Families were compelling. The court found that Father was not credible.
The court sustained the amended petitions by clear and convincing evidence.
The court removed the children from Fathers custody and denied reunification services to him under section 361.5, subdivision (b)(10) and (b)(11).
PJ and KR were placed in foster care. The court ordered the Agency to provide reunification services to S.B. It ordered Father to have no contact with PJ and KR.
The court placed KL, KY and KH with Mary under a plan of family maintenance services. The court ordered Father to have no contact with KL, KY and KH.
The court removed Baby S from S.A.s custody, placed him in foster care, and ordered the Agency to provide reunification services to S.A.
Evidence Supporting the Courts Findings and Orders
Taken together, and viewed in the light most favorable to the courts order (In re S.O. (2002) 103 Cal.App.4th 453, 461), there is sufficient evidence to establish the following.
Father physically abused and seriously injured T.E. He received reunification services but did not complete his case plan. His parental rights were terminated in 1997.
During PJs first two dependency cases, Father was offered reunification services but did not complete his case plan.
During KRs dependency proceedings, Father refused to participate in a court-ordered substance abuse evaluation and a domestic violence program, and was slow to begin other services. He eventually participated in anger management classes, individual therapy and parenting support services. Father lied to the social worker about his relationship with S.A. He coached the children to deny any abuse to police and social workers, and kept KL, KY and KH from visiting Mary.
Father gained custody of KL, KY and KH in family court by falsely accusing Mary of child abuse.
Father has an extensive history of domestic violence. In a 2007 psychological assessment, Father admitted his relationship with Mary and all his former relationships involved domestic violence.
Father has a history of sexual grooming behaviors with teenage girls. Grooming behaviors are actions or discussions that lead to an actual act of sexual abuse. Father offered underage teenage girls alcohol and marijuana, watched pornography with them, alienated them from their families, and manipulated them to have sexual relations with him.
Father began having sexual relations with Mary when she was 16 years old. When Mary became pregnant, Father convinced her and her younger sister to live with him. Father had a sexual relationship with the younger sister, who was 14 years old at the time. The sister left after Father pushed her into a glass window. Father began having sexual relations with S.A. when she was 17 years old.
When S.A. was not present, Father told J.R. detailed stories about his sexual experiences and asked her to tell him about her own experiences. Father showed her pornographic movies. He walked around the house in boxer shorts, exposing his penis. When S.A. objected, Father threatened to take Baby S away from her. He touched J.R. in a sexually suggestive manner. On one occasion, Fathers erect penis touched J.R.s leg.
On March 31, 2008, Father pulled J.R.s arm to get her to sit next to him. She pulled away and fell. Father climbed on top of her and looked like he was about to kiss her. J.R. turned her head and Father stuck his tongue in her ear. When S.A. came home, J.R. told her what happened. Father denied it. He put J.R.s arms behind her back and pushed her to the floor. When J.R. was able to get up, she grabbed a mop and started hitting him with it. Father hit her in the face with a closed fist and lacerated her lip.
Father punished PJ, KR, KL and KY (older siblings) by hitting them with his open hand, a paddle and a belt. He made them stand naked in the corner with a blanket over their heads while he hit them. The older siblings had old scarring. PJ stated that Father burned her on her left knee with an iron. KL had several unexplained burn marks on her body. Father punished the older siblings by making them sit on the floor and hold their feet and arms in the air. If the children could not maintain that position, Father hit their hands, arms and the bottoms of their feet with a belt.
Father hit KL more than he hit the other children. On one occasion, Father bound KLs wrists and ankles with a belt and "whooped" her while she was naked.
In addition to making PJ undress before he hit her, Father started hitting her in the face. On March 31, 2008, Father pushed and kicked PJ down the stairs in their home. She crawled behind a chair to protect herself. Father moved the chair and kept hitting her.
Father hit KR on the hand with a belt, cutting KRs hand. Father hit KY on her hands, buttocks and the top of her hands. Father "popped" KH on the leg.
Father taught the older children to deny abuse. They learned to distrust social workers.
PJ, KR, KL and KY stated they were afraid of Father and did not want to return to his home. When social worker Sloan spoke to them about Father, they were shaking and crying. They did not want him to visit them, even if the visits were supervised. PJ did not want any contact with Father. She was afraid he would kill her or seriously injure her. KR would wet his bed at night because he was too afraid to get up to use the bathroom.
KL, KY and KH were doing well in Marys care. Mary was able to provide for and protect her children. They had loving relationships with Mary and were happy and secure with her.
Father and S.A.s court-ordered supervised visitation with Baby S was cancelled after they missed three visits. Father did not telephone the social worker to reinstate visits. Father and S.A. concealed their newborn babys whereabouts from the Agency and the court.
II
DISCUSSION
A. Substantial Evidence Supports the Jurisdictional Findings
1. The Parties Contentions and Standard of Review
S.A. contends there is no substantial evidence to support the courts finding that Baby S was at substantial risk of suffering serious, nonaccidental physical harm. Father joins with her argument and asserts it also applies to KH. Father does not challenge the courts findings that he physically abused PJ, and that KR, KL and KY were at risk of serious physical harm. (§ 300, subds. (a), (j).)
Father argues the court erred when it sustained the section 300, subdivision (d) petition because the Agency did not show J.R. suffered sexual abuse, as that term is defined under Penal Code sections 11165.1. He further contends the courts findings that the children were at substantial risk of sexual abuse are not supported by substantial evidence. Alternatively, Father argues that even if he sexually abused J.R., there is no evidence to support a finding that his sons, KR and KH, were at risk of sexual abuse.
In his opening brief Father argues the petition was facially invalid because it did not describe one or more acts of sexual abuse enumerated in Penal Code section 11165.1. We need not consider this argument. Father acknowledges this court does not allow a challenge to the sufficiency of the petition for the first time on appeal. (In re S.O., supra, 103 Cal.App.4th at p. 460.) In addition, in his reply brief, Father implicitly acknowledges the petition stated a facially sufficient case under Penal Code section 647.6. (See Discussion, part II.A.3, post.)
Father includes Baby S in his argument. However, the Agency did not file a petition alleging, and the court did not find, that Baby S was at risk of sexual abuse under section 300, subdivision (d).
We review the trial courts findings for substantial evidence. We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.)
2. Physical Abuse
Father and S.A. contend substantial evidence does not support the findings that KH and Baby S (the toddlers) were at substantial risk of suffering serious, nonaccidental physical harm at the time of the jurisdictional hearing. They argue the March 31, 2008, incidents were precipitated by J.R.s out-of-control reaction to Fathers alleged sexual advances and PJs disregard of Fathers restrictions on her Internet use. Father and S.A. contend the toddlers were not at risk of serious physical harm because the toddlers were not likely to engage in verbal or physical altercations with Father, and Father did not have a history of physically disciplining his children until they were five or six years old.
We reject the argument.
When the childs sibling has been abused or neglected, as defined in section 300, subdivisions (a), (b), (d), (e) or (i), the court is required to consider "the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child." (§ 300, subd. (j).)
Here, these circumstances include, but are not limited to, the following: (1) Fathers abuse of his children has been ongoing since at least 1996. (2) Father seriously injured T.E. and physically abused PJ on numerous occasions. (3) His abusive behaviors including hitting PJ with a belt on her body, hitting her in the face, burning her knee with an iron, and pushing and kicking her down the stairs. PJ, KR and KY showed the social worker old scarring on their bodies, which, they said, was caused by Fathers beatings. (4) PJ and KL saw Father hit KH on the leg.
Social worker Sloan stated the risk of nonaccidental injury to a child increases when the parent has physically abused the childs sibling, the parent has continued abusive behaviors despite participating in services, the parent is suspected of physical abuse of other children, the parent has excessively physically disciplined the children in his or her care, and the parent is responsible for two or more acts of domestic violence in the household. All of these risk factors are present here. Further, the stability of Fathers mental health condition is an issue. A psychologist determined Father had mental health issues and recommended he undergo a psychiatric evaluation for possible psychoactive substance abuse disorder or psychotic disorder. Father did not comply with a family court order to undergo a psychiatric evaluation. From T.E.s case forward, Father denied any responsibility for his abusive and aberrant behaviors.
These circumstances and others set forth in part I of this opinion, ante, clearly establish there is a substantial risk the toddlers will be abused as defined in section 300, subdivision (a). (§ 300, subd. (j).)
3. Sexual Abuse
Father acknowledges Penal Code section 647.6 may apply to J.R., but argues it requires the Agency to prove sexual motivation or intent, which, he asserts, the Agency did not do. His argument is without merit.
Section 300, subdivision (d) defines "sexual abuse" by reference to Penal Code section 11165.1. Penal Code section 11165.1 enumerates a list of actions constituting sexual assault and refers to other sections of the Penal Code, including Penal Code section 647.6. Penal Code section 647.6 applies to an individual who annoys or molests any child under the age of 18. " `Annoy and molest are synonymous and mean to disturb or irritate, especially by continued or repeated acts; to vex, to trouble; to irk; or to offend." (People v. Carskaddon (1957) 49 Cal.2d 423, 426; People v. Thompson (1988) 206 Cal.App.3d 459, 463.)
Penal Code section 11165.1 states that "sexual abuse" means sexual assault or sexual exploitation. "`Sexual assault means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), 288a (oral copulation), 289 (sexual penetration), or 647.6 (child molestation)." (Pen. Code, § 11165.1.)
In interpreting Penal Code section 647.6, courts have focused on the accuseds intent and an objective assessment of his or her conduct. "`"When the words annoy or molest are used in reference to offenses against children, there is a connotation of abnormal sexual motivation on the part of the offender. Although no specific intent is prescribed as an element of this particular offense, a reading of the section as a whole in the light of the evident purpose of this and similar legislation enacted in this state indicates that the acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with respect to children."" (People v. Kongs (1994) 30 Cal.App.4th 1741, 1750, quoting People v. Tate (1985) 164 Cal.App.3d 133, 139.)
There is ample evidence in the record to show Fathers abnormal sexual interest and intent with respect to J.R. J.R. observed that when Father spoke to her about sexual matters, he became aroused. On one occasion he insisted on showing her a wrestling move. Father bent J.R. over and she felt his penis against her buttocks. On another occasion, Father told J.R. she was tense and started massaging her shoulders. He stood in front of her while she sat on the bed and straddled her legs. J.R. felt his erect penis against her leg. He lay on top of J.R. and tried to kiss her. In addition, the record shows Father has a long history of similar acts that led to his sexual relations with and sexual exploitation of teenage girls.
Father argues KR and KH are not at substantial risk of sexual abuse because there is no evidence to show Father had a sexual interest in boys or infants. Within the context of juvenile dependency proceedings, Penal Code section 647.6 has been broadly interpreted to apply to a child that may be emotionally affected by the parents aberrant sexual behavior toward another child, regardless of the childs sex. (In re Karen R. (2001) 95 Cal.App.4th 84, 90-91; In re P.A. (2006) 144 Cal.App.4th 1339, 1347.) The record supports the reasonable inference that Fathers sexually predatory behaviors, including his aberrant practice of hitting his children with a belt while making them stand naked with a covering over their heads, "annoy or molest" KR and KH within the meaning of section 300, subdivision (d).
The courts findings under section 300, subdivision (d), are supported by substantial evidence.
B. Substantial Evidence Supports the Courts Dispositional Findings and Orders
1. Removal Orders
Father contends the court erred when it removed the children from his custody. S.A. argues the court should not have removed Baby S from her care.
The Agency maintains the removal order is supported by substantial evidence. We agree.
At the disposition hearing, the court cannot remove a dependent child from the home unless there is clear and convincing evidence of a substantial danger to the childs physical health, safety, protection, or physical or emotional well-being, and there are no reasonable means to protect the childs physical health without removing the child from parental custody. (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
The court may consider a parents past conduct as well as his or her current circumstances when it determines whether a child may be safely maintained in parental custody. (In re S.O., supra, 103 Cal.App.4th at p. 461.)
Father and S.A.s argument is meritless. As the facts set out in part I, ante, clearly show, there is overwhelming evidence in the record to show there is a substantial danger to the childrens physical health, safety, protection, and physical and emotional well-being in Father and S.A.s home, and there are no reasonable means to protect the childrens physical health without removing them from his custody. (See also Discussion, parts II.B.2 and II.B.4, post.)
S.A. contends the court was required to consider, as a reasonable means to protect the child, the option of removing the offending parent from the home. (§ 361, subd. (c)(1).) She argues the court should have placed Baby S with her and ordered Father to stay out of the home.
S.A.s argument is unpersuasive. At the time of the dispositional hearing, S.A. and Father were concealing Baby Ns whereabouts from the Agency and the court. The record shows S.A. was fully aware of Fathers abusive behaviors toward the older children and J.R., and denied the allegations of physical and sexual abuse. After dependency proceedings began, S.A. gave no indication she was willing to consider leaving Father, and instead married him. The court did not abuse its discretion when it removed Baby S from S.A.s custody.
2. Denial of Reunification Services
Father contends the court erred when it denied reunification services to him under section 361.5, subdivision (b)(10) and (b)(11). He acknowledges he failed to reunify with T.E., the first prong of subdivision (b)(10), and the court terminated his parental rights to T.E., the first prong of subdivision (b)(11). He contends the court did not address the second prong of each subdivision which requires the Agency to show, by clear and convincing evidence, that Father did not subsequently make a reasonable effort to treat the problems that led to T.E.s removal from his custody. (§ 361.5, subd. (b)(10), (b)(11).)
Father further contends that, assuming the Agency met its burden to prove both prongs of subdivision (b)(10) and (b)(11), the court abused its discretion by not ordering reunification services under section 361.5, subdivision (c).
Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Unless a specific statutory exception applies, the juvenile court must offer or provide services designed to reunify the family within the statutory time period. (§ 361.5, subd. (a); 42 U.S.C. § 629a(7)(A); see In re Alanna A., supra, at pp. 563-564.)
There is no general exception to the provision of reunification services; the court must find by clear and convincing evidence that one or more of the provisions described in section 361.5, subdivision (b) apply before the court may deny reunification services to a parent. (§ 361.5, subd. (b)(1)-(15); see also 42 U.S.C. § 671(a)(15)(D).)
With some exceptions not applicable here, even when the court may deny reunification services to a parent, it has broad discretion to determine whether offering reunification services to a parent would be in the childs best interests. (§ 361.5, subd. (c); In re Angelique C. (2003) 113 Cal.App.4th 509, 523; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) A reviewing court will reverse an order denying services only if the court has clearly abused its discretion. (In re Angelique C., supra, at pp. 523-524; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. 6, 97.)
The record clearly shows Father was offered reunification services in T.E.s dependency proceeding and PJs two dependency proceedings. He did not complete his case plan in either case and reunification services were terminated. The court terminated Fathers parental rights to T.E. and returned PJ to S.B.s care. At the conclusion of PJs second dependency, the court gave S.B. sole legal and physical custody of PJ.
Father asserts he regained custody of PJ and KR; therefore he made a reasonable effort to treat the problems that had led to T.E.s and PJs removal from his custody and the termination of his parental rights to T.E. His contention is without merit.
The record establishes that Father made only minimal and pretextual efforts to treat his problems and regained custody of his children by deceit and intimidation. KRs status review reports show the social worker made repeated efforts to encourage Father to participate in his case plan. He refused to participate in substance abuse testing or a domestic violence program. During KRs dependency, Father pushed Mary down the stairs while she was pregnant, resulting in Marys hospitalization, and he had a physical altercation with her when she was nine months pregnant.
During the last six months of KRs dependency case in 2006, Father completed an anger management class, individual therapy and in-home services. In connection with his child custody proceedings with Mary, the family court ordered Father to undergo a psychiatric evaluation for psychoactive substance abuse and/or psychotic disorder, and to participate in therapy. Father did not comply with the order.
Father gained custody of KL, KY and KH in family court by falsely accusing Mary of child abuse. He kept KL, KY and KH from visiting Mary, who made referrals to child protective services on behalf of her children. Father coached the older children to deny abuse to police and social workers. He threatened to beat the older children if they talked to the social worker.
Despite the provisions of anger management services, therapy and in-home services, Father continued to discipline the children in a manner that was physically and emotionally abusive. Social worker Sloan stated his actions constituted "torture." The record compels the conclusion Father did not make reasonable efforts to treat his problems, and section 361.5, subdivision (b)(10) and (b)(11) applied.
The court did not abuse its discretion when it concluded reunification services were not in the childrens best interests under section 361.5, subdivision (c).
3. Placement of KL, KY and KH with Mary
Father contends the court erroneously placed KL, KY and KH in the care of their mother, Mary. He argues the placement was detrimental to the childrens safety, protection, or physical or emotional well-being. (§ 361.2, subd. (a).) Father contends the evidence shows Mary was mentally ill and she physically abused him and her children.
The dependency framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent) and a parent with whom the child was not residing at the time (noncustodial parent). (In re V.F. (2007) 157 Cal.App.4th 962, 969.) A noncustodial parent has a constitutional interest and statutory right to assume physical custody of his or her child unless the court finds, by clear and convincing evidence, that placement will be "detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a); In re Isayah C. (2004) 118 Cal.App.4th 684, 697.)
We review the trial courts findings for substantial evidence. The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re Dakota H., supra, 132 Cal.App.4th at p. 228.)
Fathers argument fails. Father does not attempt to show why the evidence, which includes the social workers observations the children were thriving in Marys care and clearly wanted to live with her, does not support the courts findings and orders. Rather, Father asserts detriment based solely on his own testimony, which the court determined was not credible.
4. No Contact and Visitation Orders
Father contends the court erred when it prohibited him from having contact with all the children except KH and Baby S, and did not enter visitation orders with respect to KH and Baby S. Father argues the children were not at risk in his presence, therefore the court violated his due process rights to have meaningful visitation with his children. (Stanley v. Illinois (1972) 405 U.S. 645, 651; In re Julie M. (1999) 69 Cal.App.4th 41, 49; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504.) Fathers contention is without merit.
Fathers assertion is incorrect. The record shows the court entered an order on June 30, 2008, permanently prohibiting Father from having any contact, direct or indirect, with PJ. The other no contact orders in each childs case file concern Fathers no contact order with respect to social worker Sloan.
At the end of October 30, 2008, jurisdictional and dispositional proceeding, the court granted minors attorneys oral requests for orders prohibiting Father from having any contact with PJ, KR, KL, KY and KH. The October 30 minute orders confirm the no contact orders for KL, KY and KH. (See Disposition, post.)
Generally, when the court denies reunification services to a parent, it has discretion to continue to permit the parent to visit the child. (§ 361.5, subd. (f).) However, if the court finds that visitation would be detrimental to the child, the court has no authority to order visits. (Ibid.; In re J.N. (2006) 138 Cal.App.4th 450, 457.)
The record unequivocally shows visitation with Father would be detrimental to the children. As we have discussed, the children were at substantial risk of physical and sexual abuse by Father. (See Discussion, part II.A and II.B, ante.) The older siblings feared Father and did not want any contact with him. (§ 362.1, subd. (a)(1)(B).) To force the older siblings to have contact with Father would further traumatize them. The record also shows that Father was concealing Baby Ns whereabouts from the Agency and the court. Visitation with Father would place KH and Baby S at risk of abduction and expose them to the prolonged abuse that led to these dependency proceedings.
There is no error.
DISPOSITION
The findings and orders are affirmed. If the court has not already done so, the court shall issue a nunc pro tunc order prohibiting Father from having any contact with KR.
WE CONCUR:
NARES, Acting P. J.
AARON, J.