Opinion
A149552
01-05-2017
Y.G., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. Nos. JD15-3087, JD15-3089)
This writ arises from dependency proceedings involving siblings J.G., a boy born in December 2003, and E.S., a boy born in December 2008. J.G. and E.S. were removed from the custody of their mother, Y.G., based in part on allegations of inappropriate sexual touching by Y.G. At a combined 12-month/18-month review hearing, the juvenile court terminated reunification services to Y.G., set a permanency planning hearing under Welfare and Institutions Code section 366.26, and ordered that no visits occur between Y.G. and the children. Y.G. filed a petition for extraordinary writ relief, contending the court erred by (1) terminating reunification services and failing to continue the 18-month hearing to allow for therapeutic visitation services, and (2) ordering that no visits occur pending the section 366.26 hearing. We deny the petition and the accompanying request for a stay of the section 366.26 hearing.
All undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
In March 2015, the San Francisco Human Services Agency (the Agency) filed dependency petitions (§ 300) on behalf of J.G., E.S., and their sister (Sister), who was born in July 2006. The petitions and an accompanying detention report alleged in part that Y.G. had inappropriately touched and sexually abused Sister, and that this conduct placed the boys at substantial risk of being sexually abused. The court ordered that J.G. and E.S. be detained and placed in foster care. The court ordered that Y.G. receive supervised visitation with the children. An April 2015 disposition report stated these visits were occurring. Staff who supervised the visits reported J.G. cried during most of the visiting time.
Sister, who had been residing with her father part of the time when the initial dependency petitions were filed, was also detained and placed in foster care, but was later placed with her father. Y.G. states in her writ petition that the dependency case as to Sister was dismissed in February 2016. The present writ concerns only J.G. and E.S.
In an addendum report filed in May 2015, the Agency stated E.S. had reported that, when the boys resided with Y.G., she showed sexually explicit movies in their presence and then touched them inappropriately. The boys' foster mother reported to the Agency that, during a visit by her granddaughter, the granddaughter told the boys she had a dream in which the three of them were siblings and were watching a movie together. E.S., who was six years old, then asked, " '[D]id we have sex after?' " When asked why he would say that, E.S. replied that Y.G. " 'watched sex movies with us,' " and that afterwards, she would "rub" him. E.S. demonstrated what he meant by rubbing his hands up and down his torso and legs. The foster mother did not ask E.S. any other questions. While E.S. was making these statements, J.G., who was 11 years old, repeatedly asked E.S. to " 'shut up.' " The foster mother did not ask J.G. any questions because he seemed uncomfortable with E.S.'s comments.
After receiving this report, the social worker spoke with each of the boys at the foster residence. She first spoke with J.G., who did not disclose any information about sexual abuse. The social worker stated J.G. "became very anxious as evidenced by his jittery demeanor, lack of eye contact and desire to change topics quickly." J.G. said he liked his foster placement and his new school. The social worker then spoke with E.S., who also stated he liked the foster placement. When the social worker asked E.S. about his recent comments to the foster mother, E.S. stated that he watched " 'sex movies' " with Y.G., and that J.G. and Sister also watched the movies. E.S. said he tried to cover his eyes and ears so he would not see or hear the movie. E.S. became "visibly anxious as evidenced by his lack of eye contact and request to speak about something else," so the social worker ended the interview and did not ask him any more questions.
Based on this report, the Agency asked the court to suspend visitation between Y.G. and the children until an assessment could be made as to the appropriateness of continued visitation. The court granted the request on May 8, 2015, suspending visits between Y.G. and the children pending further order of the court. Also in May 2015, the Agency filed amended petitions reflecting the new allegations.
The court set a contested jurisdiction and disposition hearing for three dates in early August 2015. But the Agency's counsel later filed a written request that the matter instead be set for an uncontested hearing on July 24, 2015, because the parties had reached a settlement that they wished to put on the record.
At the July 24, 2015 hearing, Y.G. submitted the matter for the court's resolution, and the court sustained the amended petitions. The court found true certain factual allegations made in the amended petitions, including an allegation that both E.S. and J.G. had reported that Y.G. watched sexually explicit movies with them and then touched them inappropriately, putting the boys at risk of being sexually abused. The court struck the remaining allegations that had been included in the initial petitions.
The allegations found true by the court state: (1) "The minor reported that [Y.G.] used inappropriate physical discipline on him. [Y.G.] failed to protect the minor from physical abuse by other adults in the home" (see § 300, subd. (b)); (2) "[Sister] reported that [Y.G.] has inappropriately touched her, which places [E.S. and J.G.] at substantial risk of being sexually abused" (see § 300, subd. (d)); and (3) "[E.S. and J.G.] reported that [Y.G.] exposed them to sexually explicit movies and touched them in an inappropriately sexualized manner after watching such movies, putting the minors at risk of being sexually abused" (see ibid.).
The court declared J.G. and E.S. dependents, ordered that they remain in foster care, and ordered that Y.G. receive reunification services. An attachment to the court's order states that, to be considered for reunification, Y.G. would (1) "undergo a psychological evaluation and follow any recommended treatment"; (2) "participate [in] individual therapy to address anger management, positive discipline, communication and issues of sexual abuse," (3) "successfully complete a parenting education program focusing on non-physical, age appropriate discipline techniques," (4) "participate in family therapy with the minors; minors['] individual therapists in collaboration with the mother's therapist will determine and recommend when it will be appropriate for this service to commence," and (5) "refrain from physical punishment of the children." The court's order states Y.G. could have supervised visitation "as set forth in the case plan"; the order also specified the Agency "has the discretion to set up therapeutic visits" and the discretion to increase visitation if appropriate with prior notice to all counsel.
The Agency's January 2016 report for the six-month review hearing states Y.G. participated in many of the services ordered by the court, including a psychological evaluation, individual therapy and parenting classes. Y.G.'s therapist reported that Y.G. denied any sexual abuse of the children. The Agency sought to facilitate visitation between Y.G. and the children. The social worker consulted with Foster Care Mental Health staff, but was told therapeutic visits were not appropriate in light of the allegations against Y.G. The social worker stated she "was informed that the agency which contracted to assess visitation between the children and the mother would no longer complete the service because they did not recommend visits."
The social worker nonetheless arranged a supervised visit between Y.G. and the boys on December 17, 2015. The foster mother reported that, the night before the scheduled visit, E.S. vomited throughout the night. The foster mother stated that E.S. also did this when he previously had visits with Y.G. in the spring of 2015. The foster mother reported that J.G. appeared more aggressive and controlling of E.S. after the visit.
At a hearing on January 19, 2016, the court temporarily suspended Y.G.'s visits and continued the six-month review hearing to February 16, 2016. At the February 16 hearing, the court ordered that the boys remain in foster care, that reunification services to Y.G. be continued, and that visitation between Y.G. and the boys remain suspended. The court found the Agency had made reasonable efforts to help Y.G. overcome the problems that led to the removal of the children from her custody.
In an April 2016 report for the 12-month review hearing, the Agency recommended termination of reunification services to Y.G. The Agency reported that an evaluation by the San Francisco Forensic Institute, an agency that specializes in working with sexual offenders, revealed that Y.G. " 'was highly sexually interested in children ages 13 or younger.' " Y.G. denied any attraction to children. Y.G.'s therapist also reported Y.G. had made no progress in addressing the sexual abuse allegations of her children although the therapist had brought up the topic. Y.G. continued to deny the allegations, and, as to alleged instances of abuse that did not involve her personal participation (i.e., involving other adults in the home), Y.G. displayed no interest or concern.
J.G. and E.S. were doing well in foster care. The boys wavered on whether they wanted to visit with their mother, but both stated several times they did not want to live with her again. The Agency noted visits had been suspended due to the boys' "severe emotional reaction to the visits." Family therapy services had not occurred because J.G.'s and E.S.'s therapist recommended against it, the boys were not interested in seeing their mother, and they had physical symptoms of anxiety prior to the last visit. The Agency noted the provider of such services recommended that visits not be permitted between the perpetrator and the victims in a sexual abuse case.
The 12-month hearing was continued several times, and, pursuant to the parties' stipulation, was combined with the 18-month review hearing and set for September 19, 2016. In an addendum report submitted in July 2016, the Agency reported J.G. and E.S. continued to thrive in their foster home. The boys' therapist told the Agency that J.G. and E.S. were meeting their therapeutic goals and were not displaying symptoms of anxiety. The therapist had begun meeting with them less frequently and planned to terminate services at the end of the summer. Y.G. continued to deny the children's reports of sexual abuse. The Agency continued to recommend termination of reunification services to Y.G.
At the contested 12-month/18-month review hearing in September 2016, the court admitted into evidence several of the Agency's reports. Social worker Monica Espinoza testified and explained the Agency's recommendation to terminate services. Espinoza testified that Y.G. had participated in parenting classes, parenting support groups and individual therapy. Espinoza testified, however, that she continued to recommend termination of services, because (1) Y.G. continued to deny any sexually inappropriate conduct, including denying that she showed sexually explicit movies to the children and then touched them inappropriately, (2) Y.G.'s therapist reported that Y.G. continued to "negate[ ]" the issue of sexual abuse and thus she and the therapist could not work to resolve the issue, and (3) the psychological evaluation showed Y.G. was sexually attracted to children under 13 years old.
Espinoza testified visits were suspended in May 2015 after the boys disclosed Y.G. fondled them and had them watch sexually explicit movies. Espinoza worked with Foster Care Mental Health to arrange appropriate visitation, but could not find a provider that would supervise visits. Both Foster Care Mental Health and Alternative Family Services, a provider that contracts with Foster Care Mental Health, told Espinoza that therapeutic visits were not appropriate in light of the alleged sexual abuse.
Espinoza did arrange and supervise one visit in December 2015. E.S. vomited the whole night before the visit, and J.G. was more protective of E.S. and was more sensitive after the visit. During the visit, Y.G. gave the boys gifts, including pants, and she adjusted E.S.'s new pants, including the zipper area. Espinoza told Y.G. it was not appropriate for her to do so. After that visit, the boys' attorney spoke with them and then reported they did not want to visit with Y.G. The social worker also spoke with the boys' former therapist, who stated he did not recommend visits because of the emotional distress they cause the boys. Asked about the appropriateness of therapeutic visits, Espinoza testified to her understanding that such visits "are geared around the parent tuning into the child's emotional needs and cues," but in sexual abuse cases such visits are contraindicated because the parent could use the cues to groom the child for further sexual abuse. Espinoza testified that, as part of her efforts to arrange appropriate visitation, she spoke to the boys' caregiver, therapist, and counsel, as well as to her supervisor, to Y.G.'s therapist, and to the boys.
Jackie Gallo, who works as a family specialist for the nonprofit organization Legacy and is a service provider to Y.G., testified on her behalf. Gallo testified Y.G. has participated extensively in services, such as parenting classes and family support groups. Gallo testified Y.G. denies sexually abusing her children.
Dr. Luis Perez Ramirez, a psychologist who was Y.G.'s therapist at the time of the hearing and was also qualified by the court as an expert on therapeutic treatment, testified Y.G. had made some progress in therapy, including in addressing boundary and parenting issues. Dr. Perez testified he had some concerns about Y.G.'s psychological evaluation. He believed it was not culturally competent because a translator was used throughout the evaluation. He also believed it was incomplete and was too focused on issues pertaining to sexuality.
Dr. Perez testified that he believed supervised therapeutic visits between Y.G. and the boys would be appropriate. Dr. Perez testified Y.G. denied any sexual abuse of her children. On cross-examination, Dr. Perez stated that, prior to testifying, he was unaware the court had found true allegations of sexually inappropriate conduct by Y.G. In response to hypothetical questions, Dr. Perez stated that, if a parent has in fact sexually abused his or her child but denies the abuse, the parent would pose a risk to the child unless the parent received treatment. Dr. Perez testified it would be better for the parent to admit the abuse prior to engaging in any therapeutic visits with the child, but he suggested it would not be a prerequisite to having successful therapeutic visits. In a supervised setting, he would not be concerned about a parent's "grooming" the child for future sexual abuse.
During the argument portion of the hearing, counsel for Y.G. urged the court to continue the 18-month review hearing pursuant to section 352, to allow for therapeutic visits to occur. Counsel for Y.G. argued that, based on Dr. Perez's testimony, therapeutic visits could occur without an admission by Y.G. that she had sexually abused the children.
The court began its ruling by stating it was considering the issues and arguments raised by the parties in light of the previous order (entered by a different judge at the jurisdiction/disposition hearing) finding true the allegations in the amended petitions. The court found that returning J.G. and E.S. to Y.G.'s custody would create a substantial risk of detriment to the boys. The court also found the Agency had provided reasonable reunification services to Y.G. The court terminated reunification services to Y.G. and scheduled a section 366.26 hearing for January 24, 2017. The court also granted the Agency's request to prohibit visits between Y.G. and the boys pending the section 366.26 hearing. The court did not expressly rule on Y.G.'s counsel's oral request for a continuance of the 18-month review hearing, but implicitly denied it by terminating reunification services and scheduling a section 366.26 permanency hearing.
II. DISCUSSION
A. The Termination of Services and Y.G.'s Request for a Continuance
Y.G. contends the court erred by terminating reunification services and failing to continue the matter to allow for therapeutic visitation services. At the 18-month hearing, "[t]he minor must either be returned to the physical custody of his or her parent or the court must terminate reunification services and set a hearing for the selection and implementation of a permanent plan." (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015 (Mark N.).) But the court has discretion under section 352 to continue the 18- month review hearing and extend reunification services up to 24 months upon a showing of good cause. (In re J.E. (2016) 3 Cal.App.5th 557, 563-564 (J.E.); see Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510-1511 [continuance available when exceptional circumstances warrant an extension of services].) "In exercising its discretion under section 352, 'the juvenile court should consider: the failure to offer or provide reasonable reunification services; the likelihood of success of further reunification services; whether [the minor's] need for a prompt resolution of [his] dependency status outweighs any benefit from further reunification services; and any other relevant factors the parties may bring to the court's attention.' " (J.E., supra, 3 Cal.App.5th at p. 564.)
As noted, the September 19, 2016 hearing proceeded as a combined 12-month/18-month hearing; the court applied the legal standards applicable at an 18-month review hearing. (See § 366.22, subd. (a).)
Section 352 states in part: "Upon request of counsel . . . the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance." (§ 352, subd. (a).)
During oral argument at the 18-month hearing, Y.G.'s counsel requested that the court "use its discretion under [section 352] to continue this case so that therapeutic visitation can be provided or some type of family therapy." In its opposition to Y.G.'s petition in this court, Agency contends this oral request did not comply with the procedural requirements of section 352. Section 352 states that, when counsel for a party seeks a continuance of a hearing, "written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance." (§ 352, subd. (a).) A court also may continue a hearing under section 352 on its own motion. (Mark N., supra, 60 Cal.App.4th at p. 1017.) As noted, the court did not expressly rule on the oral request for a continuance but proceeded to terminate reunification services and set a section 366.26 hearing. Whether we construe this action as a decision by the court not to "entertain" counsel's oral request for a continuance because it found no "good cause" to do so (§ 352, subd. (a)), or as an exercise of the court's discretion to deny the request because it found no "good cause" for the continuance itself (ibid.), we find no error.
In her brief argument on this point in her writ petition, Y.G. contends a continuance to allow for therapeutic visitation services would have been appropriate because the Agency had not made sufficient efforts to facilitate family therapy or therapeutic visitation. But the court reasonably could conclude the Agency's efforts in this area were reasonable under the circumstances. (See Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426 ["The 'adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case.' "].) As discussed in more detail above, the social worker attempted to arrange therapeutic visits but was informed by the relevant service providers that such visits were not appropriate. The boys' therapist also recommended against visits in light of the emotional distress they caused the boys.
The evidence supported a conclusion that the boys experienced significant anxiety in connection with the December 2015 supervised visit the social worker did arrange (as they had in connection with prior visits in the spring of 2015). The social worker testified that, because no other part of the boys' routine had changed around the time of the visit, she believed the reason the boys were anxious was because of the visit with Y.G. Y.G. argues the social worker's testimony as to the likely cause of the boys' anxiety is speculative, but the court reasonably could credit the social worker's assessment and take the boys' anxiety into account in determining whether the Agency's concerns about further visitation were reasonable. Finally, as noted, in her efforts to identify and pursue a possible appropriate avenue for visits, the social worker spoke with the boys' caregiver, therapist and attorney, as well as her supervisor, Y.G.'s therapist, and the boys.
Moreover, in making its rulings at the 18-month review hearing, the juvenile court emphasized the true findings that were previously made as to the allegations in the amended petitions, including allegations that the boys and their sister reported Y.G. touched them inappropriately (in the boys' case, after watching sexually explicit movies), and that as a result there was a risk the boys would be sexually abused. The social worker testified that Y.G. denied showing sexually explicit movies or touching the children inappropriately, a fact the court also found significant. The evidence, including the testimony of Y.G.'s expert witness, Dr. Perez, supported a conclusion that, when a parent has engaged in sexual abuse or related inappropriate conduct but does not acknowledge the conduct, therapeutic visitation is either not indicated at all, or, at a minimum, is less likely to be successful. (See In re Jessica B. (1989) 207 Cal.App.3d 504, 516 [traditional treatment such as therapy "is of limited value until the abuse is admitted"].) Finally, the report of the psychological evaluation of Y.G. showed she was "highly sexually interested in children ages 13 and younger."
As the court emphasized in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752-1754 (Blanca P.), findings on sexual abuse issues in a dependency proceeding can have a significant impact in later phases of the proceeding, in part because, when a parent is found to have committed abuse but continues to deny it, that "denial itself . . . may end up preventing reunification." Here, at the 18-month review hearing, the court noted that, in evaluating the issues presented (such as whether it was appropriate to return the children to Y.G.'s custody, and whether the Agency provided reasonable services), it relied in part on sustained allegations in the amended petitions (made after Y.G. submitted at the jurisdiction/disposition hearing rather than contesting the allegations) and Y.G.'s continued denial of the alleged conduct. But in contrast to Blanca P., there is no basis here for questioning the court's initial findings on the question of sexual abuse. (See Blanca P., supra, at pp. 1754-1759.) The record does not suggest that the reports of inappropriate touching by Y.G. were coaxed out of the children; there is no basis for concluding the judge who made the findings at the jurisdiction/disposition hearing was confused about the issues presented or about the stage of the proceedings; and Y.G. submitted rather than contesting the allegations of the amended petitions. (See id. at pp. 1741-1745, 1753-1754 [emphasizing the importance of reliable fact-finding at a "hearing on a contested petition alleging child sexual abuse"].) --------
In light of the evidence presented at the 18-month review hearing and the court's prior findings, the court's decision not to continue the hearing to allow for additional services was not an abuse of discretion. The court reasonably could conclude that the Agency's efforts to facilitate reunification were reasonable under the circumstances, and that (partly as a result of Y.G.'s continued denial of the conduct underlying the sustained allegations in the amended petitions) further efforts to facilitate visitation services were unlikely to lead to reunification. (See J.E., supra, 3 Cal.App.5th at p. 564 [relevant factors in determining whether to continue hearing under § 352].) And the court reasonably could conclude the children's need for resolution of their dependency status without further delay outweighed any benefit from further services. (See ibid.)
Y.G. suggests a continuance would not have delayed permanency for the children because the Agency had not located relatives who would take custody of the minors and had not identified an adoptive home for them. But delaying the section 366.26 hearing would prolong the boys' uncertain status. (See § 352, subd. (a) [in deciding whether to continue a hearing, court "shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements"].) The court reasonably could conclude such a delay was not appropriate here.
B. The Prohibition on Visitation Pending the Section 366.26 Hearing
Y.G. contends the court erred by granting the Agency's request that visits between her and the boys be prohibited pending the section 366.26 hearing. When the court sets a section 366.26 hearing, the court must continue to permit the parent to visit the child pending the hearing "unless it finds that visitation would be detrimental to the child." (§§ 366.21, subd. (h), 366.22, subd. (a)(3).) We review for substantial evidence a court's finding that visitation would be detrimental. (In re Mark L. (2001) 94 Cal.App.4th 573, 581.)
Y.G. initially contends the court failed to make a finding of detriment. We disagree. At the 18-month hearing, the court first concluded a return of the boys to Y.G.'s custody would be "detrimental" to them; the court explained it based its finding of detriment on the sustained allegations of sexually inappropriate conduct in the amended petitions and Y.G.'s continued denial of those allegations. After the court announced its ruling terminating services and setting a section 366.26 hearing, the Agency renewed its request for a "no visitation order." The court granted the request and, although it did not use the word "detriment" this time, it noted again the same factors it had found would make a return to parental custody detrimental. Addressing Y.G., the court stated, "I understand that you find yourself in a difficult position because you may not believe the allegations that have been found true in this case, but without acknowledging the truth of those, you're not in a position to address the process of healing with [J.G.] and [E.S.].
So because those have been found to be true and you are by all accounts continuing to dispute their truth outside of this courtroom, I cannot permit visits with [E.S.] and [J.G.] at this time." The court's explanation, considered in light of its earlier comments, constitutes a finding that visitation would be detrimental to the boys.
This finding is supported by substantial evidence, which we have discussed in greater detail above. The record supported a conclusion that visitation with Y.G. caused the boys to experience great anxiety. The boys' therapist did not recommend visits because of the emotional distress visitation caused them. The providers sought out by the social worker to facilitate therapeutic visitation would not do so because of the allegations of sexual abuse. The report of a psychological evaluation of Y.G. stated she was highly sexually interested in children ages 13 and younger. Viewing the evidence in the light most favorable to the Agency (see In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361), there is substantial evidence supporting the court's finding that visitation with Y.G. would be detrimental to the boys.
III. DISPOSITION
The petition is denied on the merits. (See § 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h).) The request for a stay of the January 24, 2017 hearing is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Rivera, J.