Opinion
G054252
02-14-2017
ROBERT P., v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Law Offices of Vincent W. Davis & Associates and Stephanie M. Davis for Petitioner. Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel for Real Party in Interest Orange County Social Services Agency. Law Office of Harold La Flamme and Tina Stevens for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DP026183-001) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Gary L. Moorhead, Judge. Petition denied. Law Offices of Vincent W. Davis & Associates and Stephanie M. Davis for Petitioner. Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel for Real Party in Interest Orange County Social Services Agency. Law Office of Harold La Flamme and Tina Stevens for the Minor.
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Petitioner Robert P. (father), the father of now 14-year-old K.P. (child), challenges orders made at the combined 6-, 12-, and 18-month review hearing terminating reunification services and setting a permanency hearing under Welfare and Institutions Code section 366.26 (all further statutory references are to this code unless otherwise noted). He claims real party in interest Orange County Social Services Agency (SSA) did not provide reasonable services, the court incorrectly discontinued visitation after services were terminated, and the permanency hearing should not have been set. These claims lack merit and we deny the petition.
Although mother's services were also terminated she did not file a writ petition.
FACTS AND PROCEDURAL HISTORY
Child and her two brothers (brothers; all three collectively children) were taken into custody in May 2015. Allegations of general neglect had been reported in April.
Services for the brothers were not terminated and they are not parties.
Child spoke to a social worker about her living conditions, the abuse in her home, and her depression and suicidal thoughts. Five days before, child had moved to stay with her maternal aunt (Aunt) because she felt "'like I just didn't want to live anymore,'" but would rather die based on her dealings with father. When living with mother and father, "'I felt like I wished I had never been born. I was afraid of telling anyone all that stuff, because if I tell, then bad things happen.'" Child did not feel depressed or like hurting herself when living with Aunt but instead was happy. Although mother knew child was depressed, father would not allow her to take child to a therapist due to lack of funds.
Child reported she was "'blamed for everything at home. I'm so sad when I'm home I can't even eat.'" That is why she missed school. Child had talked to social workers in the past, and father had become angry, taking it out on mother and children. Child was afraid of father, describing him as a domineering bully with an "explosive temper" and abusive. Father had picked her up under her arms, leaving bruises. One time father was so angry he smashed mother's head into the tile floor, it damaged her hearing. Child said mother was fragile and weak and afraid of father. Father had threatened mother many times in the past.
The family had been referred to SSA on nine previous occasions beginning in 2012. Most reports were found to be inconclusive or unsubstantiated for general neglect.
The school psychologist said staff were worried about the safety of child being in father's custody. One of child's brothers reported seeing her holding a knife saying she wanted to hurt herself. The other brother said sometimes father and mother hit each other. Another time father became so angry while driving he caused an accident.
Child saw father watching pornography on television and his computer. She heard him making animal noises and moaning and when she walked into the room he tried to hide it and made her leave.
Child saw father walking around the house naked, describing it as "'totally gross.'" Sometimes he sat with children while they were watching TV. He put a blanket over himself, put Vaseline on his hand and put it under the blanket. He then moved his hand on his lap.
Both the interior and the exterior of the family's house was filled with trash and debris, making it dangerous and difficult to get through the house. There were dirty dishes all over the counters and old food in the refrigerator, and trash and boxes in many rooms. Father explained his father recently died and he had nowhere to store his father's things. Father refused to clean the house, and when child and mother tried to clean and dispose of things, father hurt mother's ear by loudly yelling in it.
In May 2015 father was arrested after police found the house dangerous for children and there were exigent circumstances that made it necessary to remove child and her brothers. Father was charged with three counts of child abuse and endangerment (Pen. Code, § 273a, subd. (b)) and indulging in degrading, immoral, vicious, or lewd practices in the presence of a child (Pen. Code, § 273g).
Father denied almost all of the conduct of which he had been accused—watching pornography, masturbating in front of the children, and engaging in domestic violence with mother. He also said he had never left a bruise or a mark on child. He admitted being naked in the house, saying, "'well, it's my house.'"
In May 2015 SSA filed a section 300 petition, for failure to protect, and as to child, serious emotional damage. It alleged the long-time unsafe condition of the home, including father's interference when other family members tried to clean; father's lack of boundaries and inappropriate sexual conduct around child; parents' history of domestic violence, sometimes in children's presence; father's disciplining child by lifting her by the armpits leaving bruises; child's thoughts of suicide over the past six months; child's brandishing a knife saying she wanted to harm herself; and child's missing school due to stomach aches because of the family environment.
At the detention hearing, visitation between father and child was ordered only with child's consent with the social worker's and therapist's input.
At the jurisdiction and disposition hearing, father submitted on the petition, which the court found true. The court continued the previous visitation plan. The court ordered a psychological evaluation for parents under Evidence Code section 730 (730 evaluation)
A July 2015 interim report included information mother had left father and gone to a shelter. At this time children were living in a group home. Mother returned to the family home in September.
Father's case plan included taking responsibility for his actions; showing the ability and willingness to have custody of children; completing a parenting class and reenrolling if requested; attending an anger management class; and participating in appropriate therapy until goals were met. In therapy father was to discuss the "sexual inappropriateness" of his conduct.
Child's social worker advised the group home child did not want to see father. They were acceding to her request and working with her because at "any mention of or sight of her father, she becomes extremely anxious."
Father told the social worker he did not know why mother left him. He also said he did not understand the pending criminal charges, explaining he was a "'good father.'" In addition, he did not understand why child did not want to visit with him.
Father's therapists advised father was in "'[d]enial about everything, which includes the [h]oarding and masturbation" and "'is blaming everyone else, and in grandstanding.'" His original therapist found his prognosis poor.
The 6-month review hearing was continued a number of times and was then combined with the 12-month hearing. That hearing was continued several more times again until ultimately it was combined with the 18-month hearing. There were a number of reports and addenda generated during this period. The relevant substantive contents in the reports were very similar and we summarize them for content without identifying each specifically, unless necessary for clarity.
Father and Mother
Father's therapist explained father minimized and lacked accountability. He was good at manipulating things and unable to accept anyone else's perspective. He lacked insight and, even after completing his anger management program, became defensive and angry when the therapist explained he had failed to take responsibility for the underlying causes of children's detention.
Father continued to deny everything. He was angry about some of the contents of an SSA report, including hitting mother, his nudity and masturbation, and the reason he used Vaseline, and wanted them removed. Father told the social work child "needs to confront her problems and talk to me about it." Father also told the social worker, "'We are amazing parents.'"
As time went on father made slight progress on his plan goals. He admitted hitting mother once. But he still claimed he used Vaseline for dry skin. He also admitted children may have broken into his bedroom and might have seen him masturbate. Mother now denied father's inappropriate sexual conduct in children's presence.
Father believed child should be forced to visit him because he was the parent and a child is not in charge.
After nine months of therapy, father's therapist stated father had met his goals and he was not recommending any more therapy. Parents had learned techniques to avoid domestic violence between each other. At the same time the report stated father continued to deny inappropriate sexual conduct or take responsibility for it, admitting only that he had gotten out of the shower with the door open. He needed further progress. It was "'very difficult to come up with a prognosis,'" given that father denied he had masturbated in front of child.
The report also stated father had not met his goal to have a clean and safe house. He had set and cancelled four appointments to have the house inspected. In addition, father did not meet his goal to show he had the ability to understand child's feelings and to give her emotional support.
The therapist recommended father attend an offending parent group and mother, a non-offending group. Before family therapy was appropriate, parents needed to take responsibility for the involvement of SSA and would not blame child or subject her to shame. Shortly thereafter, mother told a social worker child had a tendency to lie and had serious emotional problems due to bullying. She also claimed child was being manipulated by Aunt.
Just over 90 days before the combined hearing, father pled guilty to three counts of child abuse and endangerment (Pen. Code, § 273a, subd. (b).) He was sentenced to probation, community service and a one-year child abuser treatment program. The social worker understood father was prohibited from contacting child through a third party; father had violated this order. When the probation officer went to the family residence he was unable to enter because no one was home. He was appalled when he looked through the window because there was trash everywhere.
The probation officer reported father still denied the underlying acts and did not take any responsibility for his conviction. The officer also recommended against reunification due to father's denial and the condition of the home.
Mother told child she was going to tell her something child did not want to hear, that father loved her. This was in violation of the order that parents not discuss the case with children.
A social worker recommended mother's visits be monitored due to her continuing lack of insight. Mother's therapist told the social worker mother said children lied about father's inappropriate sexual behavior. Mother continued to report child did not understand father's nudity; he had no sexual intent.
By this time, parents would be unable to complete the parenting class by the combined review hearing nor would father finish his criminal court-ordered child abusers course. Additionally, the house was not cleaned. Further mother could not protect children from father because she continued to say children lied about father's sexual behavior. Parents refused to attend the additional therapy groups because they had already finished a parenting program and the referring therapist, whom they had never met, had no basis for the recommendation. They later said they would consider attending.
Child
Child began remembering prior abuse by father and another child abuse report was filed. During the past year child had been depressed, not eating or sleeping. Father had dragged her by her neck to school, squeezing so hard he bruised her. Another time, when child grabbed father in a bear hug to stop him from beating mother, father dug his nails into her skin. Father invoked his Fifth Amendment right and refused to speak to SSA. Child also reported father had exposed her to "'sexual things'" and pornography since she was four. She also spoke of the hoarding and filth in the house.
Child's therapist reported child experienced posttraumatic stress disorder (PTSD), showing symptoms of helplessness, hopelessness, terror, anxiety, memory problems, nightmares, and avoidant behavior. This continued during the period of reunification and whenever father was mentioned. The therapist described child as fragile. Although child made progress in therapy, it would take some time to recover due to the severity of her memories.
The therapist recommended there be no visitation or contact between father and child, even phone calls, because it would harm child. The therapist did not support family therapy for child and parents due to father's tendency for violence and mother's denial of an unsafe home.
Neither of brothers' counselors believed they should participate in family therapy. Later, the therapists agreed parents should complete their parent group programs before family therapy --------
As therapy continued, child still felt "'overwhelmed, boxed in, confused, distressed, paralyzed, panicked, edgy, and weighed down.'" But later she reported that since she had moved out of parents' home she could become the person she always wanted to be.
Child remained insistent she have no contact with father. She was also adamant she never see father or go home again. Child continued to experience PTSD when she thought about seeing father. She was anxious about attending court and stressed even when thinking about the chance she might see father there. Child saw father twice when she was visiting with mother, once from a distance when he dropped mother off. This made her feel uncomfortable and unsafe.
Child was doing well in school, getting good grades and making friends, in contrast to at her previous schools. She ultimately decided she wanted to live with her Aunt and uncle. They were interested in having her placed with them.
The 18-month review report stated a social worker was finally able to inspect the home. It was cleaner than it had been at the time of children's removal. It was still cluttered and there were four cars on the lawn. But the odor was not major and the sinks, tubs, and toilets worked.
In that report, child reiterated to the social worker that if she was forced to return home she would kill herself. She remarked, "'Finally, the good guys are winning.'" The social worker reported that the section 730 evaluator had said if parents failed to gain insight, which they had not, they would likely abuse again.
In the report for 6- and 12-month hearing, SSA recommended reunification services as to child be terminated, but continued for brothers until 18-month hearing. In the report for the combined hearing, SSA recommended reunification services be terminated for all.
At the combined hearing, the court admitted all the reports. There was no testimony. The court found reasonable services had been provided and return of child to parents would create a substantial risk of harm. Mother objected to the limit on her education rights and to visitation; father joined. The court gave mother four hours of monitored visitation with child's input.
DISCUSSION
1. Reasonable Services Were Provided.
Father claims there is insufficient evidence he was provided reasonable reunification services. Specifically, he complains the plan should have included family therapy and visitation in a therapeutic setting to facilitate visitation with child. He claims SSA was required to continue to try to conceive of ideas to heal the relationship between him and child. Otherwise the services were not reasonable. He criticizes SSA for failing to refer him and child to "a neutral therapist" who could provide a "safe environment" for visitation. He also faults SSA for allowing child "to make the rules and dictate the case plan," giving "a teenager" "complete control" over visitation. We disagree with these arguments.
First, father forfeited this claim. He did not raise this contention at the combined hearing. Father joined in mother's objections to two issues: child's education rights and visitation. But he made no mention of services. In addition, on the stipulation as to orders and findings, father checked the box stating clear and convincing evidence showed reasonable services had been provided or offered. He cannot now challenge the reasonableness of the services. (In re Cody W. (1994) 31 Cal.App.4th 221, 231.)
Even on the merits, there is substantial evidence reasonable services were provided. Father was given 18 months of services. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388; § 366.22, subd. (a)(1) [generally permanency hearing must occur within 18 months of detention].) He was referred to individual therapy, and anger management and parenting classes, in which he participated. He was also referred to the additional parenting class, which he refused to attend, despite his case plan that required he reenroll in parenting classes if the social worker asked. According to both father's and children's therapists, this was necessary to protect children. Without it father was not ready for family therapy.
Father had not yet accepted responsibility for his actions and lacked insight into child's trauma. After almost a year of the classes he had completed, he believed child should be forced to visit because she was a child and was not in charge.
This was despite the severe emotional suffering child had endured and continued to endure. Many if not all of the symptoms of PTSD remained. Even the thought of seeing father caused her to be anxious and want to throw up. By the time of the combined hearing she still maintained she would kill herself if she was forced to return to his custody. According to child's therapist, visits would not be safe for child unless father took the course.
Thus, it was wholly reasonable to require father to participate in the additional program before family therapy. Services father now claims he wanted were available to him. He just had to do his part to receive them.
SSA must tailor a reunification plan to fit the circumstances of the family in question and to eliminate the conditions leading to the juvenile dependency proceeding. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) It is often true more services could have been provided and the services actually provided might have been better. But "[t]he standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances. [Citation.]" (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
As demonstrated, the services here were reasonable under the circumstances. There is no evidence family therapy or visitation with father would have helped achieve reunification. The service plan was appropriate; father just failed to do the work. 2. No-Visitation Order After Services Were Discontinued Was Proper.
At the combined review hearing, the court terminated reunification services and father's visitation with child. Father contends there was insufficient evidence to support this ruling. We are not persuaded.
Pending a permanency hearing, visitation must be allowed to continue unless the court "finds that visitation would be detrimental to the child." (§ 366.21, subd. (h).) The court has broad discretion in setting visitation (In re Megan B. (1991) 235 Cal.App.3d 942, 953) and visitation may be denied if the court finds it would be harmful to the child (In re Mark L. (2001) 94 Cal.App.4th 573, 580).
In reaching its decision the court must balance the best interest of the child against the rights of the parent. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) Because it had been 18 months after the initial detention, child's interest outweighed father's—they were "paramount." (In re Manolito L. (2001) 90 Cal.App.4th 753, 763.)
Citing In re C.C. (2009) 172 Cal.App.4th 1481, 1491, father argues that to totally suspend visitation the potential detriment to the child must be both physical and emotional. Not so.
In In re C.C., at both an ex parte hearing and the disposition hearing, relying on the opinion of the child's therapist, the family court suspended visitation as detrimental. The appellate court reversed, ruling that at least "some visitation is mandatory unless the court specifically finds any visitation with the parent would pose a threat to the child's safety." (In re C.C., supra, 172 Cal.App.4th at p. 1491, italics omitted.)
In re C.C.'s interpretation of section 362.1 has been criticized. Section 366.21, subdivision (h) does not require visitation if it would be "detrimental." Most cases have interpreted detrimental to apply to emotional health, without the requirement of physical harm as well. (See e.g., In re T.M (2016) 4 Cal.App.5th 1214 [under section 362.1 allowing for visitation if not harmful to "well-being" of child; "well-being" includes emotional harm]; see also In re Brittany C. (2001) 191 Cal.App.4th 1343, 1357; In re Mark L., supra, 94 Cal.App.4th at p. 581; In re Julie M. (1999) 69 Cal.App.4th 41, 50; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)
In re Brittany, supra, 191 Cal.App.4th at page 1357 held a court may "suspend visits when continuing them would be harmful to a child's emotional well-being." If a court could not do so it "would be required to sit idly by while a child suffered extreme emotional damage caused by ongoing visits. . . . Visits of that nature are hardly consistent with the well-being of the child[]." (Ibid.) Here, as discussed above, there is substantial evidence visits would have been harmful to child.
Moreover, the record shows visitation would be a threat to child's physical safety. When child was taken into custody, she threatened suicide if she had to remain with father. By the time of the combined hearing, child remained suicidal at the thought of having to return home. There is no reason to think this would change because father had not changed. Not only was he denying his conduct, he was blaming child for the state of affairs.
Father maintains child must visit even against her wishes, relying on In re S.H. (2003) 111 Cal.App.4th 310, 319. But S.H. does not apply here because, among other things, it dealt with visitation before services were terminated where the standard is different.
Father complains the court failed to make factual findings supporting the discontinuance of visitation. But we review the record in the light most favorable to the ruling (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53), and because the evidence is clear, infer all findings necessary to support it (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 838 [visitation terminated to protect child molested by father]).
The record shows child's therapist believed visitation was and would be detrimental to child and recommended against it until father understood and acknowledged his conduct. Father's therapist concurred, as did the section 730 evaluator. There is substantial evidence child had been traumatized by father and would continue to suffer if she was forced to visit with him. Thus, contrary to father's unsubstantiated claim, there is evidence he was a threat to her emotional well-being.
Father argues he will be prejudiced at the permanency hearing because he will not be able to prove the visitation prong of the benefit exception and his parental rights will be denied without "a fair opportunity to present a defense." But any prejudice will be a result of father's own conduct, not due to an alleged erroneous order.
DISPOSITION
The petition is denied.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.