Opinion
A130820
08-12-2011
In re G.O., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.O., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. JD103120D)
I.
INTRODUCTION
In this appeal, M.O. (father) claims the juvenile court erred in granting successive Welfare and Institutions Code section 388 petitions filed by the San Francisco Human Services Agency (the Agency), which resulted in the juvenile court's order rescinding supervised visits with his six-year-old daughter, G.O. (the minor). Father claims that his visitation with the minor should be reinstated because the Agency failed to establish changed circumstances, or that discontinuing his visitation would be in minor's best interests. In addition, father claims he was denied his due process right to confront and cross-examine the therapist whose statements were referenced in the section 388 petitions. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code. Section 388 reads in pertinent part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (§ 388, subd. (a).)
II.
FACTS AND PROCEDURAL HISTORY
The minor, along with her four older siblings, were adjudged dependent children of the juvenile court after numerous reports were received by the child abuse hotline indicating concern that the children were being abused and/or neglected. Prior to the minor and her siblings being placed in protective custody, they were residing with their mother, and their father resided elsewhere. The children and their mother lived in a large house where their mother rented out three bedrooms in order to have enough money to pay the monthly rent. The renters were mostly men, and it was substantiated that the minor's 14-year-old sister was sexually assaulted by a male tenant on February 22, 2010. When the matter was investigated, the mother admitted that the older children were beyond her control, coming and going as they pleased, yelling at her, fighting among themselves, and refusing to go to school. It was the general consensus of the social service providers working with this family that "the children's safety was jeopardized by the ongoing chaos and violence in the home."
The family has a long history with the Agency, and in a prior dependency proceeding in 2007, it was substantiated that the father sexually abused another one of the minor's sisters. Consequently, in this most recent dependency proceeding, the court decided to bypass family reunification services to father pursuant to section 361.5, subdivision (b)(6) [infliction of severe sexual abuse or physical harm to child or sibling]. The court found visitation with the father would be detrimental to the children, except for the minor, who was the youngest child; and the court ordered supervised visitation with the minor only. Although supervision visitation was ordered, it appears that father had not exercised his visitation rights for over a year because of financial hardship.
There were allegations in this proceeding that new information had surfaced that father had sexually abused another daughter. However, the juvenile court ultimately found that this allegation was not supported by the evidence. Consequently, we omit all facts regarding this allegation.
The Agency filed two petitions pursuant to section 388, one on September 3, 2010, and another on October 20, 2010, alleging that a change of circumstance existed warranting a change in the court's order permitting father's supervised visitation with the minor. In supporting documentation, the Agency's social worker alleged that the minor, who was only six years old at the time, experienced "a lot of trauma, including witnessing domestic violence between the parents, violence between the siblings, and the sexual assault incident with her sister . . . . [The minor] recently began individual therapy with Ms. Kerrie Larosa. Ms. Larosa states that [the minor] is still trying to adjust to her new placement, starting the school year at a new school, and still having issues with bed-wetting. At this time, Ms. Larosa states that another major change for [the minor] is not in her best interest."
Paige Donnell, the family therapist, also told the social worker that it would be confusing for the minor to visit the father because the minor was the only sibling having contact with the father and he abused her siblings in the past. The social worker further wrote that Donnell "reports that [the minor's] symptoms of enuresis and encopresis (at one point, [the minor] had more than ten incidents per day) had improved over the past couple of months, but that the behaviors had presented again since this [visitation] issue arose." Donnell opined that "this shows how [the minor's] symptom improvement is fragile, and that her behavioral regression may be associated with anxiety and about losing control over the sense of stability she's begun to experience."
The social worker also wrote that being "in a situation where [the minor] feels she is betraying her mother and siblings by seeing her father could create tensions within the family system and cause emotional stress for [the minor]. Starting visits with her father abruptly could be detrimental to [the minor's] well-being. In order to minimize potential negative impact of any future visits with her father, careful planning and preparation need to happen with [the minor] and the rest of the family due to the implications of sibling relationships and the fragility of [the minor's] own ability to regulate her emotions and manage her symptoms of regression in response to stress."
Father filed an opposition to the Agency's section 388 petitions, claiming the petition contained inadmissible hearsay, among other things. Father presented documentary evidence that past supervised visitation with the minor had been successful.
On November 5, 2010, the minor's counsel formally joined the Agency's section 388 petitions, asking the court to grant the Agency's request to terminate supervised visitation with the minor. Counsel wrote in her declaration that the minor recently experienced many changes in her life, including removal from her mother's care, a new foster home, a new school, and living apart from her siblings for the first time. Counsel further stated that as a result of these changes in the minor's life, she "is experiencing health and behavioral issues" and another big change would be detrimental at this time. However, counsel acknowledged that the minor had expressed a desire to see her father.
On November 8, 2010, the minor's mother joined the Agency and the minor's counsel to request that the court terminate visits with the father. That same date, the court held a hearing on the Agency's section 388 petitions. The father's counsel informed the court that the father had to work that day and his appearance was waived. The court asked if anyone wanted to be heard before the court ruled on the petitions, and the father's counsel submitted the matter to the court. The court then granted the Agency's section 388 petitions. In doing so, the court stated: "I do find that there is a change in circumstance that has been set forth and supported talking about [the minor's] fragile state, her struggles adjusting to the second foster home and to a new school. And that her best interests have been met by this petition. So it's for those reasons I am granting the two petitions." The court further found that visits between the minor and father would be detrimental to the minor. This appeal followed.
III.
DISCUSSION
A. Evidentiary Support for Granting Section 388 Petitions
In order to gain the relief sought in its section 388 petitions, the Agency was required to show both a change of circumstances and that the change sought was in the minor's best interest. (§ 388; In re Michael B. (1992) 8 Cal.App.4th 1698; 1703; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The Agency bore the burden of proof to make both of these showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Father claims "the Agency did not carry its burden of establishing new evidence that warranted modification of the previous order or that the proposed change was in the best interest of [the minor]."
A petition under section 388 "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) In reviewing the challenged order for an abuse of discretion, we emphasize that this is not a case where father was working toward reunification with the minor. It has been held that a court need not order visitation when reunification is bypassed, as in this case. (In re J.N. (2006) 138 Cal.App.4th 450, 457.) Put another way, "visitation is not integral to the overall plan when the parent is not participating in the reunification efforts." (Id. at pp. 458-459.)
Father discusses at length that many of the circumstances outlined in the Agency's section 388 petitions were based on factors that were in existence at the time the court made its order granting supervised visitation with the minor. However, while some of the information contained in the petition is historic, the court's decision to rescind its prior order granting supervised visitation was not based on the father's past history. Rather, the Agency presented sufficient new evidence that the circumstances had changed since the order was entered, and that the proposed modification of the visitation order would promote the minor's best interest.
Specifically, there was abundant evidence set out in the Agency's section 388 petitions that the minor had endured a chaotic childhood, including witnessing domestic violence between her parents and having two of her older siblings sexually abused by adult males in the household (including incidents not alleged earlier), leaving her emotionally and physically fragile.
All of the service providers working with the minor, including her individual therapist, her family therapist, and her caseworker, recommended against any big changes for the minor right now as she transitioned to a new foster home and school environment and for the first time dealt with living apart from her siblings. Consequently, they unanimously agreed that due to the minor's difficulty in coping with change, there existed the distinct possibility that the minor's anxiety and trauma would be aggravated by reintroducing visits with father after such a long absence. When considered in the context of minor's interest in long-term stability and permanence, the court properly determined that it was in the minor's best interest to have supervised visitation with the father terminated while she transitioned to a new foster care placement.
B. Denial of Due Process
In addition, father argues that the order granting the Agency's section 388 petitions should be reversed because he was denied his due process right to a meaningful opportunity to cross-examine the therapists whose statements were referenced in the petitions. Whether father's due process rights were violated in this case is a question we resolve as a matter of law. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.)
"The parties to dependency proceedings have a due process right, confirmed by court rule, to confront and cross-examine witnesses." (In re Matthew P. (1999) 71 Cal.App.4th 841, 849 (Matthew P.); Cal. Rules of Court, rule 5.570(h)(2) .) However, procedural due process is not absolute. (Matthew P., supra, 71 Cal.App.4th at p. 850.) "Due process is a flexible concept which depends upon the circumstances . . . ." (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) In the context of section 388 proceedings, it has been held that due process requires that the parent be given the opportunity to present oral testimony and to confront and cross-examine witnesses against them if there are material conflicts in the evidence or material issues of credibility. (See, e.g., In re Clifton V. (2001) 93 Cal.App.4th 1400, 1404-1405; Matthew P., supra, 71 Cal.App.4th at p. 851.)
Rule 5.570(h) of the California Rules of Court governs the conduct of hearings on section 388 petitions. It requires that a section 388 petition hearing be conducted in the same manner as a dispositional hearing if "(2)(A) The request is for removal from the home of the parent or guardian or to a more restrictive level of placement"; or "(C) There is a due process right to confront and cross-examine witnesses." Otherwise, "proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court."
The record shows that father had notice of the grounds for the Agency's section 388 petitions and was given an opportunity to file written opposition and present his case at a hearing held on November 8, 2010. Father did not attend the hearing, and his appearance was waived by counsel. At the beginning of the hearing, the court asked the parties if anyone wanted to be heard. Father's counsel did not inform the court that she wished to cross-examine any witnesses or present any evidence or argument; nor did father's counsel seek a continuance so that witnesses could be secured. Furthermore, father's counsel did not identify any conflicts in the evidence or credibility issues that needed to be resolved by live testimony and cross-examination. Instead, father's counsel submitted the matter for decision. Since father's counsel never requested the opportunity to cross-examine the therapists who were quoted in the Agency's section 388 petitions, the issue has not been preserved for appellate review. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198 [stepfather waived due process issue by failing to raise the matter below]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.)
Given this record, father's efforts to compare his case with In re Dolly D. (1995) 41 Cal.App.4th 440 (Dolly D.) are unpersuasive. In Dolly D. the father failed to appear for a pretrial mediation conference prior to the jurisdictional hearing. The court deemed him in "default" and denied his counsel's request for a "default prove-up" hearing so that he could cross-examine the social worker regarding the allegations in the petition. Instead, the court determined the jurisdictional issue based on the social worker's reports and declared the child to be a dependent child within the meaning of section 300, subdivision (b). (Id. at p. 443.) The appellate court found that by denying counsel's request for a hearing, the court deprived the father of his right to confront and cross-examine the social worker who prepared the jurisdictional report, "a clear violation of his rights." (Id. at p. 445.)
Notably, Dolly D. involved the juvenile court's denial of a parent's request for a jurisdictional hearing, a critical phase of the dependency proceedings. "[C]ases [such as Dolly D.] holding that a parent has an unfettered due process right to confront and cross-examine adverse witnesses at . . . hearings held before the permanency planning stage do not compel the identical conclusion with respect to hearings held after reunification services are terminated. [Citations.]" (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1181.) Also, unlike Dolly D., the record shows the juvenile court in this case did hold a hearing on the Agency's section 388 petitions. When the court informed the parties that it was prepared to make a decision based on the documentary evidence, father's counsel expressed no objection.
Consequently, we believe this case has many more similarities with In re C.J.W. (2007) 157 Cal.App.4th 1075, than it does with Dolly D. There, the appellate court was faced with an issue similar to the issue before us—whether a parent's due process rights were violated when the juvenile court denied a section 388 petition without hearing any testimony. On the record presented, the appellate court found the juvenile court "did conduct a hearing" even though it "did not allow testimony from the parents on the section 388 petitions" because it "receive [d] written evidence and heard substantial argument from counsel for the parties." (Id. at pp. 1080-1081, fn. omitted.) The parents' counsel "concurred with this manner of proceeding and did not object." (Ibid.) Accordingly, the court concluded, "[t]he hearing, as conducted by the dependency court, comported with due process." (Ibid.)
It follows that father was afforded an opportunity "to be heard in a meaningful manner," based solely on the documentary evidence filed in support of and in opposition to the Agency's section 388 petitions. (In re James Q. (2000) 81 Cal.App.4th 255, 265.) We therefore reject father's argument that the procedure the court followed violated his due process rights.
IV.
DISPOSITION
The court's order granting the Agency's section 388 petitions is affirmed.
RUVOLO, P. J.
We concur:
REARDON, J.
RIVERA, J.