IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
October 24, 2011
IN RE E. J., A PERSON COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY HEALTH & HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
C. J., DEFENDANT AND APPELLANT.
(Super. Ct. No. 10JVSQ2847601)
The opinion of the court was delivered by: Blease , J.
In re E.J. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
C.J. (appellant), the father of E.J. (the minor born in 1993), appeals from juvenile court orders adjudging the minor a dependent child and placing her in the custody of the Department of Social Services (DSS). He contends the juvenile court failed to make an express finding that visitation would be detrimental to the minor, and that insufficient evidence supports the juvenile court's no contact order. We disagree.
Appellant further contends the juvenile court improperly delegated to DSS the power to determine whether visitation would occur. We disagree, but conclude the dispositional order requires clarification that there is to be no contact between appellant and the minor -- with or without the approval of DSS.
1. Family History
In December 1992, when the minor's mother (V.K.) was three months pregnant with the minor, appellant sexually molested V.K.'s eight-year-old niece. When law enforcement arrived to arrest appellant, he resisted and a violent struggle ensued. Appellant was arrested but when the victim refused to cooperate with the investigation, the charges were dropped.
In 1995, appellant was charged with infliction of corporal punishment upon a spouse or cohabitant. In 1997, appellant was arrested for committing battery, and in 1998, he was arrested for disorderly conduct and being drunk in public.
In August 1999, a friend of the minor's disclosed that appellant had sexually molested her (the friend). Law enforcement told V.K. not to allow appellant to have contact with the minor during the investigation. V.K. ignored their directive and allowed appellant to see the minor "whenever he wanted." V.K. said the minor was "odd," and V.K. refused to believe the allegation of abuse.
Soon after the minor's friend reported the abuse, appellant, intoxicated, broke into the friend's home. Appellant attempted to dissuade the family from pressing charges for sexual abuse. The friend's mother sprayed appellant with pepper spray and called the police. Appellant was arrested for disturbing the peace, being drunk and disorderly, trespassing, and drunk in public.
In January 2000, the counselor with whom the family was working due to a prior referral to DSS, contacted DSS because appellant "was not cooperating with the counseling, and [the minor] (age 6) was reporting things that were concerning regarding sexual abuse by [appellant]." V.K. was "reprimanded for allowing [the minor] to be in contact with [appellant] while he was drinking and the family was referred back to the counselor to continue with therapy."
Three months later, appellant was awarded temporary sole custody of the minor after the minor disclosed that she was sexually abused by a male cousin who was living with the minor and her mother. Appellant then accused V.K. of sexually abusing the minor. Those allegations were deemed "inconclusive." Shortly thereafter, appellant and the minor moved to Washington state.
Several referrals were made to the "Washington State DSHS" alleging sexual and physical abuse of the minor. DSS could not find dispositions for many of those referrals, investigation into some of the referrals were stopped without explanation, and others were deemed inconclusive.
The minor returned to the attention of DSS in Shasta County in 2008. Fifteen years old and diagnosed with "mild mental retardation," the minor disclosed that appellant was drunk and she did not feel safe going home. DSS advised appellant he should not combine his medication with alcohol; appellant agreed and the referral was closed with the allegation of general neglect deemed unfounded.
In March 2009, the minor reported to her school counselor that appellant had touched her inappropriately by rubbing his hands up and down her thighs and breasts. When the minor told appellant to stop, he said: "It's my house and I can do anything I want to."
The minor also reported that appellant drinks to excess, takes prescription medications, and throws pieces of wood at her when he is angry. The minor described how appellant would become aggressive, angry, and even violent when he drank. The minor said she was afraid to go home to appellant so she went home with her grandmother. The minor later declined to testify and the matter was not prosecuted further.
In May 2009, a voluntary family services case was opened in response to the minor's report of appellant's behavior and the minor saying she felt unsafe with appellant. As part of the voluntary services, V.K. and appellant agreed V.K. would petition the court for sole custody of the minor and appellant would receive only supervised visitation. The voluntary services plan was then closed; however, V.K. and appellant failed to follow through on the agreement. Moreover, even though it was "understood by all parties that [the minor] should not live with [appellant]," V.K. and the minor continued to do so after the voluntary services plan was closed.
2. Incidents leading to current petition
On April 11, 2010, a DSS social worker contacted the local police out of concern for the minor's safety. When Police Officer Morehouse arrived at the minor's residence, he advised the social worker that appellant was too intoxicated to care for the minor. The minor was immediately taken into protective custody.
A month later, the minor left the apartment in which she was living with appellant at 10:00 p.m. The minor went to a neighbor whom she had never met before and told the neighbor she was afraid of appellant. The neighbor contacted the police. When the police arrived, they once again found appellant too intoxicated to care for the minor. The minor also disclosed to the officer at the scene that appellant was sexually abusing her. The minor explained how appellant would rub her thighs when he was drunk and refused to stop when she asked him to. The minor was, again, taken into protective custody.
Appellant later admitted having had a "couple drinks," and that his drinking might be a problem. However, he expressed his opinion that DSS "never do their job and 'put ideas in [the minor's] head.'" He believed the best place for the minor was with him, telling DSS: "You can take her away, but she'll always belong to me."
V.K. expressed concern for her daughter, but was "vague about custody arrangements and her recent drug use." V.K. did tell the social worker she was on parole for a drug conviction, and she tried to convince the social worker that the police were "mistaken," appellant "was probably not drunk."
On May 13, 2010, DSS filed a Welfare and Institutions Code section 300 petition*fn1 alleging the minor's parents failed to protect her (§ 300, subd. (b)) and that the minor was sexually abused by appellant (§ 300, subd. (d)). Specifically, DSS alleged that V.K. had a substance abuse problem, a history of drug offenses, and she returned the minor to appellant's care despite the minor's allegations of sexual abuse by appellant. DSS further alleged that appellant had "anger control and alcohol abuse problems," a violent criminal history, a history of referrals for general neglect and sexual abuse, and that appellant sexually abused the minor when he was intoxicated.
The following day, the juvenile court ordered the minor detained. The court further ordered there be no visitation between appellant and the minor, finding such visitation would be detrimental to the minor. At appellant's request, however, the court did grant DSS discretion to allow supervised visits with appellant "depending on the parent's progress and the best interest of the child(ren)." Reunification services also were ordered.
On June 21, 2010, the parties appeared for a combined jurisdictional/dispositional hearing. The issues of jurisdiction and disposition were continued, but appellant asked the court to allow him to visit the minor, either in a supervised or therapeutic setting. DSS and minor's counsel objected to the request. The juvenile court denied appellant's request, maintaining the prior "no contact order."
The following month the parties again appeared for the jurisdictional/dispositional hearing. V.K. waived her right to trial and agreed to submit the matter; appellant requested a trial. Appellant also renewed his request for therapeutic visitation with the minor. Minor's counsel objected, saying the minor was refusing contact with appellant. DSS also objected, indicating they were awaiting a new police report. The court again denied appellant's request and maintained the no contact order. The matter was then set for trial in September 2010.
The minor subsequently spoke with law enforcement regarding the allegations of sexual abuse. The minor, now 17 years old, told the investigating officer that defendant would regularly become intoxicated and then come into her bedroom between midnight and 3:00 a.m. to talk to her about cleaning her room. The minor also described how appellant rubbed her thighs, making her uncomfortable.
The minor described the same situation to DSS -- appellant was drunk, rubbing her thighs, and talking "nasty" to her. She also described an incident where appellant showed her and her friend pictures of two women naked on top of one another.
The minor remembered appellant making her take pictures of "'some young girls on a bed' who were naked and touching each other." The minor estimated that happened when she was about eight years old, but said, "Things happened so much, I can't remember what order." The minor also recalled an occasion when appellant tried forcing her to have sex with a man she did not know.
DSS contacted appellant by telephone to discuss the matter. Appellant sounded "tense and angry"; when asked if he had been drinking alcohol, appellant said, "NO!" Appellant went on to say he had been trying for two months to "fix things," but his back was in pain, and they would not let him see his daughter. Appellant then said, "This is ALL on HER!" When asked to clarify, appellant said he meant the minor, that she was lying. Appellant said it was "too late" to tell "his side of the story."
Appellant continued, saying he would "'dis-own [the minor] now, you people can HAVE that good for nothing kid! She's gonna suffer!" He said he was going to commit suicide and intended to create a will in which he would make it clear that he killed himself and the minor would know she was responsible. He told the social worker he had several bottles of "Oxy" that he would take; she asked him not to kill himself; he told her to "go to hell . . . ", and hung up the phone.
The social worker contacted law enforcement who contacted appellant and determined he was not actually suicidal. The following day appellant contacted the social worker and said he hoped she had a child. Appellant said he had her address and phone number. He told her, "[t]here's an eye for an eye," and said, "Guess what? You take mine away . . . ha ha pay backs are a mother fucker aren't they." He also told her that he was "a vicious son of a bitch when [he was] hurt," and she had "fucked with the wrong person." Appellant then threatened to "take out" the entire DSS.
That same day, appellant contacted another DSS social worker and threatened her child as well. He also threatened the detective investigating the DSS petition telling her to "'look out,' and 'an eye for an eye . . . .'" He dared her to "prove anything bitch," and threatened to go to the house where the minor was living and make contact with her.
The sheriff's office was apprised of the threats and deputies soon arrived at appellant's home. As they waited outside for additional deputies to arrive, the deputies saw appellant walk out of his residence holding a rifle. Appellant aimed the rifle toward his neighbor across the street saying, "I will pop a cap in your head." He then shot the gun in the air. The deputies ordered appellant to the ground at gunpoint; appellant refused saying, "Fuck you." "A 'taser' was [then] deployed and [appellant] was taken into custody without further incident."
Two days later, on July 23, 2010, the juvenile court issued three "CLETS" restraining orders prohibiting appellant from contacting the minor, and either of the DSS social workers he threatened. The restraining order prohibiting appellant from contacting the minor precludes appellant from having any visitation or contact with the minor and requires him to remain at least 300 yards away from the minor, her residence, her place of employment, her school, and her vehicle.
In support of the restraining order, the juvenile court found that appellant believed he knew where the minor had been placed and he threatened to make the minor "pay for the report of sexual abuse . . . ." The court also based the restraining order on appellant's threat of suicide, the threats made against the social workers' children, and defendant firing a gun at his neighbor while intoxicated. The restraining order does not expire until midnight on July 21, 2013.
On November 9, 2010, the jurisdictional/ dispositional hearing was held. The section 300 petition was amended; counsel for appellant made an offer of proof denying all the allegations, and submitted the matter. After considering the offer of proof, the reports of the social workers, the exhibits, and evidence presented, the court found the allegations in the amended petition to be true.
Proceeding to disposition, the court declared the minor to be a dependent of the juvenile court pursuant to section 300, subdivision (b). The court further found DSS complied with the case plan by "making reasonable efforts and services to make it possible for the child to safely return to the child's home. . . ." Appellant, however, made "no progress . . . toward alleviating or mitigating the causes necessitating placement." As noted in the DSS report, appellant did not participate in the services provided, and he continued to insist the minor was lying about the sexual abuse.
Appellant appeals from the dispositional orders.
1. Appellate jurisdiction
Appellant's notice of appeal indicates he is appealing from the October 19, 2010, order. On October 19, 2010, the juvenile court did nothing more than order the jurisdictional/dispositional hearing continued to November 9, 2010. This is neither a final judgment nor an order after judgment. Thus, it is not an appealable order. (§ 395, subd. (a)(1).)
Appellant does, however, have a right to appeal the November 9, 2010, jurisdictional/dispositional order. (§ 395, subd. (a)(1).) We must liberally construe the notice of appeal. (Cal. Rules of Court, rule 8.100(a)(2).) Since appellant's notice of appeal was filed 41 days after the November 9, 2010, jurisdictional/dispositional hearing, and states he is appealing from the October 19, 2010, order, which only continued the jurisdiction/disposition hearing to November 9, 2010, we will liberally construe the notice as an appeal challenging the jurisdictional/dispositional order of November 9, 2010.
2. There is sufficient evidence to support the no contact order.
Appellant appeals from the juvenile court's order denying him visitation with the minor while granting him reunification services. He contends the juvenile court failed to make the requisite finding that visitation would be detrimental to the minor. He further contends there was insufficient evidence that visitation would pose a threat to the minor's safety.
"Visitation is a necessary and integral component of any reunification plan. [Citations.] 'An obvious prerequisite to family reunification is regular visits between the non-custodial parent or parents and the dependent children "as frequent[ly] as possible, consistent with the well-being of the minor."' [Citations.]" (In re S.H. (2003) 111 Cal.App.4th 310, 317, fn. omitted.)
"Visitation orders made at the time of the dispositional hearing are governed by section 362.1. Subdivision (a)(1)(A) of that section provides, 'In order to maintain ties between the parent or guardian and any siblings and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent or guardian, . . . any order placing a child in foster care, and ordering reunification services, shall provide as follows: [¶] . . . Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child.' Subdivision (a)(1)(B) provides, 'No visitation order shall jeopardize the safety of the child. . . .'" (In re C.C. (2009) 172 Cal.App.4th 1481, 1489-1490.)
Thus, "when reunification services have been ordered and are still being provided, as they were in this case, 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; but see In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008 [court may deny parent visitation "if visitation would be harmful to the child's emotional well-being"].)
Appellant is incorrect that no finding of detriment was made. At the time of detention, the juvenile court denied appellant visitation with the minor finding: "[n]o visitation due to detriment to the child." That order was repeatedly affirmed by the court, and is supported by substantial evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581 [orders finding detriment are reviewed for substantial evidence].)
Appellant has a long history of alcohol and drug abuse, and the minor has repeatedly said she is afraid of appellant when he is drunk. The minor also reported that appellant sexually abused her when he was drunk, and the court found those allegations to be true. The record further demonstrates that appellant is violent when angry and/or intoxicated.
The court's finding of detriment is further supported by appellant's conduct after the finding was made. Appellant threatened to harm not only his own daughter, but the children of DSS social workers and the investigator on this matter. Appellant threatened his neighbor with a gun, shot a rifle into the air at his neighbor's house, and engaged law enforcement in a physical altercation when they attempted to arrest him. As a result, the court issued a protective order prohibiting appellant from coming within 300 yards of the minor.
Accordingly, we find the court acted well within its discretion in refusing appellant's requests for visitation with the minor, and in finding visitation would cause the minor detriment.
3. The dispositional order should be modified to clarify that the CLETS protective order precludes DSS from allowing any visitation.
The dispositional orders from which appellant appeals provide that "the Department has discretion to increase, decrease back to the minimum visitation order, or change the level of supervision depending on the parent's progress and the best interest of the child." Because the juvenile court also ordered "no contact" between appellant and the minor, appellant contends this order improperly delegated to DSS the authority to begin visitation. We disagree.
The language in the dispositional order appears to have been drafted along with the Disposition Report, which was filed on July 14, 2010. On July 23, 2010, the juvenile court issued a CLETS order of protection precluding appellant from having any contact with the minor for three years. Thus, there can be no visitation between appellant and the minor with or without DSS approval. The order should thus be amended to reflect the terms of the protective order, and the language permitting visitation at the discretion of DSS removed.
The juvenile court is directed to amend the dispositional order to reflect the terms of the CLETS protective order issued by the court on July 23, 2010. The orders of the court are otherwise affirmed.
We concur: RAYE , P. J. HOCH , J.