IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 18, 2011
IN RE J.R., JR., ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
J.R., SR., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. JD222957, JD222958, JD222959, JD228645)
The opinion of the court was delivered by: Hoch , J.
In re J.R.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Father (J.R., Sr.) appeals from the juvenile court's orders denying him reunification services as to minors J.R., Jr., Asa.M., Au.M., and E.M. and maintaining an existing no-contact order as to mother (K.M.) and the minors, following a contested dispositional hearing on a petition under Welfare and Institutions Code*fn1 section 387. Father contends the court erred by denying reunification services and visitation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sacramento County (2005-2008)
On August 30, 2005, Sacramento County Department of Health and Human Services (the Department) filed section 300 petitions as to As.M. (a male born in August 1998), Asa.M. (a male born in January 2001), Au.M. (a female born in August 2002), and J.R., Jr. (a male born in May 2004), alleging that mother had physically abused As.M.
Father was the alleged father of the two younger minors; the older minors had two other alleged fathers. Father has a long criminal history.
According to the maternal grandmother, mother threw father out of the house after a fight, then "took it out on" As.M. Ever since mother became involved with father, "there have been issues of both physical and emotional abuse." The maternal grandmother said mother had been diagnosed with severe depression, had used Ecstasy, and was probably using other drugs.
Father was living in Elk Grove with his father and wanted to be considered for placement. He admitted a criminal history, but denied domestic violence and substance abuse. He was not employed.
On September 2, 2005, the juvenile court ordered the minors detained. The jurisdiction/disposition report recommended removal of the minors from the parents' custody and reunification services for both parents (except as to As.M., for whom the report recommended placement with his father and dismissal of the case).
Mother and father had lived together off and on since meeting five years ago. Mother says he had not lived with her for six months; father says he had been living with his father for the last year. Father still received mail at her house and came over often.
Mother was trying to move and wanted a temporary restraining order against him. The minors had witnessed domestic violence between the parents. Most recently, on August 26, 2005, after father had taken Ecstasy, she told him to leave, but instead he picked her up and carried her back into the house screaming. He had broken the phones in the house so she could not call 911.
According to father, he had "not necessarily" used domestic violence against mother. She was the aggressor on August 26, 2005, as she had been before. She was "the controlling one," and getting a temporary restraining order against him was a way of keeping her power. He had never hit her, but once when he tried to stop her from overdosing on pills, she told the police he had hurt her and he went to jail. She was the one who pulled a phone from the wall. He admitted that the minors had witnessed fights between himself and mother, but he tried to make things work between them. When he and mother slept separately after fighting, he would get Au.M. to come and sleep with him. He had a very strong bond with Au.M. and J.R., Jr.
Father admitted recent marijuana use, but resisted drug testing and did not understand why he had to drug test.
Father denied more than occasional alcohol use or any drug use other than marijuana. He also denied being violent or committing any crimes other than a long-ago theft. Other alleged criminal offenses were "a bunch of lies" his aunt and/or his cousin made up about him, "just like [mother] does."
Asa.M. and As.M. said father and mother argued a lot and father had hit mother. Asa.M. said father had also hit him. As.M. said father had threatened to hurt all the minors, and everyone wanted him out of the house.
Father had been on searchable probation since a battery conviction in October 2004. He had not yet complied with any probation terms and conditions, including attending a required 52-week batterer's treatment program.
An addendum report filed October 6, 2005, recounted a new incident of domestic violence between the parents. A police report indicated that mother hit father in the knee with a metal baseball bat, but she claimed it was self-defense and he had been stalking her.
Mother had been drug testing negative while working and going to school full-time. Father had not drug tested yet.
Mother had supervised visitation with the minors, but did not exhibit good parenting skills. Father had not visited the minors because he had not contacted the social worker.
The Department filed amended section 300 petitions on October 13, 2005, additionally alleging the parents' domestic violence, mother's failure to obtain a restraining order against father, her continuing contact with him, his failure to enroll in a batterer's treatment program, and his substance abuse problem. On the same date, the juvenile court set the matter for a contested jurisdiction/disposition hearing.
On January 17, 2006, the juvenile court sustained the section 300 petitions and ordered Asa.M., Au.M., and J.R., Jr., placed with mother under dependent supervision.*fn2 Father, who had not complied with his case plan, was granted reunification services and ordered to participate in dependency drug court.
Yolo County (2008)
On March 8, 2006, the juvenile court ordered the matter transferred to Yolo County, where mother and the minors now legally resided.
On February 7, 2008, Yolo County Department of Employment and Social Services (Social Services) filed nondetaining section 300 petitions as to the minors already under the juvenile court's jurisdiction, plus E.M. (a male born in October 2007). The petitions alleged:
On January 15, 2008, mother reported to the Woodland Police Department that five-year-old Au.M. claimed father had sexually abused her. At the Multi-Disciplinary Interview Center (MDIC) interview, Au.M. disclosed sexual abuse by father, including fondling, digital penetration, sexual intercourse, and oral copulation.
Even though mother had obtained two restraining orders against father, she continued to allow him into her home to visit the minors and to spend the night.
Father had still not completed a batterer's treatment program. He resisted services and failed to complete those intended to address his anger problems. He had two restraining orders issued against him and consistently failed to abide by court orders.
Father did not appear at the jurisdiction hearing on February 27, 2008, because he was incarcerated and refused to be transported for the hearing; the juvenile court did not appoint counsel for him. The court sustained the petitions. Noting mother's restraining order against father and her intent to file for divorce, the court ordered no contact between father and the minors.
The disposition report recommended that the minors remain in mother's care with family maintenance services. The report also recommended that father, who was incarcerated on Au.M.'s sexual abuse charges, be denied reunification services and visitation (at least so long as the charges were under investigation).
On April 9, 2008, at the disposition hearing, the juvenile court adopted the recommended findings and orders, and also ordered: "Father to have no contact with minor [sic] pending further order of the court."
The six-month status review report, filed September 5, 2008, recommended no change in the existing orders. The report stated:
Mother had not returned to work due to emotional stress, allegedly caused by father's actions. She was very concerned because no sexual abuse charges had been filed against him. She feared that when he was released he would try to find her and the minors. She felt the police could not protect them. She slept with a bat under her bed and found it hard to trust people.
Mother had been participating in counseling and parenting programs. The family had been referred for additional services, and the two older minors had been approved for psychological evaluations. An evaluation had also been requested for Au.M., who had recently started having nightmares, temper tantrums, and was wetting the bed.
Mother said that despite her restraining order against father, he had sent her four letters from prison. She had turned them over to the police, who told her they would try to "violate" him.
J.R., Jr., told mother of an earlier incident in which father had allegedly stuck sharp objects in J.R., Jr.'s bottom, choked him, and held a knife to his throat; Au.M. said she had witnessed this incident. The minors also told mother that father touched the infant, E.M., with a "poison flower"; mother remembered that E.M. had a rash, which she attributed to this alleged touching. The social worker referred mother to the minors' therapist to address these allegations.
The minors appeared on track developmentally. Asa.M. was making good progress in second grade. Au.M., who was in first grade, was having a hard time, presenting behavioral problems and being teased by other children. After father's alleged abuse of Au.M., Asa.M. and J.R., Jr., had serious anger issues, but the minors' behavior had recently improved. Although they still had some issues with anger, they were more open to listening to mother.
At the six-month review hearing on September 17, 2008, the juvenile court adopted the recommended findings and orders.
On October 21, 2008, Social Services requested that the case be transferred to Sacramento County because mother had moved there. On October 29, 2008, the juvenile court ordered the transfer.
Sacramento County (2008-2010)
The Department's transfer report recommended maintaining the existing orders from Yolo County.
According to the report, father had violated probation and would remain incarcerated in California State Prison, Soledad, for the next three years (exact release date unknown);*fn3 he had refused to attend all hearings in Yolo County and had not participated in any services. The Yolo County social worker was concerned about mother's inability to distance herself from father and recommended that mother and the minors continue with counseling.
Mother wanted her current address to remain unknown to father, whom she planned to divorce and to avoid completely in future.
At the transfer hearing on December 9, 2008, the juvenile court adopted the recommended findings and orders, including the order that father have no contact with the minors until further order of the court because visitation would jeopardize the minors' safety.
In-home Review Reports and Hearings
An in-home review report filed February 17, 2009, recommended that mother receive further services under dependent supervision.
The minors were all doing well, bonded to each other and to mother; however, they had not begun counseling. Mother could not produce certificates of completion for domestic violence counseling and parenting education and resisted the idea of retaking courses. She was still unemployed and reported stress due to financial needs. She had been referred to individual counseling and to further domestic violence counseling, but had not yet begun them. She appeared overwhelmed by having to care for four minors, and lacked age-appropriate strategies for disciplining them.
At the in-home review hearing on March 5, 2009, the juvenile court adopted the recommended findings and orders, including the continuing no-contact order as to father.
The in-home review report filed August 10, 2009, recommended continued dependent supervision and services to mother. J.R., Jr.'s, behavior had worsened despite individual counseling; mother thought he might have overheard her say that father would be released from prison soon and she feared he might try to kill her. There was also a concern that the minors' older sibling, As.M., spending the summer with the family, might have touched Asa.M. and J.R., Jr., inappropriately. Au.M., whose behavior had improved, was experiencing some decrease in functioning, possibly related to As.M.'s presence in the home.
Mother was doing temporary work and receiving a CalWORKs grant; she still experienced financial stress. She had begun individual counseling, but her attendance was irregular. She had not yet begun domestic violence counseling. She was ensuring that the minors receive therapy, but had not regularly taken part in the sessions.
At the in-home review hearing on August 28, 2009, the juvenile court adopted the recommended findings and orders, including the continuing no-contact order as to father.
An in-home review report filed March 19, 2010, recommended that the minors remain in mother's care under dependent supervision. It was reported that father was released from prison in November 2009 and he had not contacted the Department.
Mother remained fearful that father would try to locate her and the minors if he knew their address. She had requested a renewal of her restraining order against him. She was unemployed, receiving CalWORKs and food stamp aid. She was participating in counseling, but had not yet begun a formal domestic violence program because she was "staggering" her services. She continued to feel overwhelmed with required services and with caring for four young children as a single mother.
At the in-home review hearing on March 19, 2010, the juvenile court adopted the recommended findings and orders, including the continuing no-contact order as to father.
Petitions to Place Minors in Foster Care
On May 14, 2010, the Department filed supplemental petitions seeking the minors' placement in foster care (§ 387). The petitions alleged:
Mother had not participated in services since on or about December 9, 2008. On March 30, 2010, the social worker had visited the home and found it dark, smelling of urine, and filthy; during the visit, mother did not get out of bed. On or about April 29, 2010, mother took the minors out of California without court or Department approval. She said she was staying in Washington with her adult brother, who had physically abused the minors' sibling As.M. and had molested mother when she was a child. Mother's high level of anxiety had exacerbated the minors' mental health problems. Mother had shown an inability to manage her parental responsibilities as to all four minors, to address their mental health problems, and to demonstrate age appropriate expectations of the minors.
The detention report recommended continued foster placement pending the jurisdiction/disposition hearing. Mother claimed she and the minors were doing well in Washington and she did not believe further therapy was warranted, although the social worker and the therapists agreed that the minors and mother had been regressing even before they left the state.
The Department continued to recommend no contact between father and the minors.
On May 20, 2010, at the initial hearing on the section 387 petitions, the juvenile court authorized continued emergency detention of the minors.
Contested Jurisdiction/Disposition Hearings
The jurisdiction/disposition report recommended continued out-of-home placement for the minors and reunification services for mother. The report stated that services to father were terminated on July 12, 2006.*fn4
Mother claimed the social worker had advised her the Department could not stop her from moving out of state. When this was questioned, mother said she had moved with the minors "abruptly" out of fear for her and their safety. She insisted she had done everything required of her, and the minors would be safe in her care if father could be kept from contacting them.
Attempts to reach father by telephone were unsuccessful.
On July 7, 2010, mother applied for a new restraining order against father. The juvenile court issued a temporary restraining order effective through July 26, 2010.
At the contested jurisdiction/disposition hearing on July 19, 2010, the parties submitted on jurisdiction on the Department's report and the juvenile court sustained the section 387 petitions as amended.
The Department asserted that services should be denied to father pursuant to section 361.5, subdivisions (b)(6) (severe sexual abuse of a child) and (b)(10) (prior termination of services as to each of his children).
As to mother, the juvenile court made the recommended findings and orders, and additionally ordered that mother be referred for Parent-Child Interactive Therapy and that mother and the minors be referred for a child welfare evaluation. As to father, the court deferred the disposition hearing.
An addendum report dated August 5, 2010, stated that father wanted reunification services, but recommended that they be denied pursuant to section 361.5, subdivision (b)(10), because he had failed to reunify with Au.M. and J.R., Jr., in 2006. Bypassing services to him would not be detrimental to the minors because they did not have a strong and positive bond with him. They had not seen him since December 2007. Both minors had told the social worker on August 3, 2010, that they did not want visitation with him. Giving him services would probably be detrimental to the minors' emotional stability because he had a significant history of domestic violence and had admitted a continuing sexual relationship with mother despite his no-contact order.
Father said he had not been allowed visitation with the minors. It appeared, however, that he had not diligently pursued visitation.
Father said mother lied about him and "stole my kids from me." However, he also said he and mother had recently been in e-mail contact, spent July 4 together, and had sex.*fn5
Father claimed mother "set [him] up" twice on domestic violence charges, including the one for which he went to prison in 2007. The first one, in 2004 or 2005, occurred after an argument about her alleged infidelity; according to him, she "went crazy, she head butted me in the mouth, she bit me, I had her in a bear hug and we both fell to the ground. She called the police and I got put in jail." After he went to prison, "she was telling people I went in for raping my daughter, she's evil."
Father said he was employed, no longer used illegal drugs, and had no history of mental health problems.
Father said he did not know who his parole officer was or whether his no-contact order as to mother included the minors. His parole officer said, however, that father knew who he was because father had called him the week before. The no-contact order did not specifically include the minors. Father had several parole conditions, including a domestic violence program.
The director of father's batterer's program stated that father had been attending regularly, but could also benefit from counseling. The program director had no reservations about father caring for children.
A second addendum report, filed August 23, 2010, again recommended no reunification services to father, citing his alleged sexual abuse of Au.M. (§ 361.5, subd. (b)(6)) and his previous failure to reunify with the minors (§ 361.5, subd. (b)(10)). Although father said he wanted services and visitation, "his primary focus appears to be expressing his anger and blame toward the mother for his lack of a relationship with his children and the condition of his parole that he have no contact with the mother or anyone surrounding her."
On September 22, 2010, the juvenile court held the contested disposition hearing as to father.
At the outset, the court told father: "What I'm going to do is I previously made dispositional orders, and it allows for you to have visitation. But I'm going to order that you and the mother shall not have any contact. Any visitation that you have with the children shall be arranged by the Department, and the mother is not to be the supervisor. Any visits that mom has with the children is not to be supervised by you. So there is no contact between the two of you."
County counsel submitted on the recommendations of the second addendum report. Mother's counsel and the minors' counsel endorsed the county's position that reunification services should be denied to father under both statutory provisions cited in the report.
Father testified that he had a good relationship with the minors. He did not know that reunification services had been offered to him in 2006 until after the juvenile court terminated them. Recently he had completed a parenting program and a residential drug abuse program for parolees. He was in compliance with his parole requirements. He would complete more services if ordered. It would be in the minors' best interests to reunify with him because he was their father and "I have been there all this time until I went to prison." Father later admitted that the minors had last lived with him in October 2007.
Father wanted the minors placed with him if it were possible, but recognized that out-of-home placement was necessary at this time. He did not believe mother was mentally sound enough to be involved with them: "[S]he has made them lie on the stand against me. She manipulated the system. She put me in prison. Like, she's destroyed, like, everything that I have for my children before I got locked up. And it just seems like she doesn't care." He testified he had never sexually abused the minors.
Although father was participating in the required domestic violence program, he testified he had never committed domestic violence: "I just ended up going to prison because [mother] called the cops on me." He "[a]bsolutely" did not need a sexual treatment program.
During argument, the juvenile court noted that the Department had not prepared any recommended order on visitation or contact. The Department recommended denying visitation because the minors were "adamantly opposed" to it and it would cause them additional harm and stress.
The juvenile court made the following findings and orders:
By clear and convincing evidence, section 361.5, subdivisions (b)(6) and (b)(10), applied. Petitions were sustained in Yolo County regarding the molestation of Au.M. There was a serious history of domestic violence, for which father had gone to prison. Despite father's denials, the truth of the allegations against him was established.
Father had not "rehabilitated from those allegations" because he still denied committing domestic violence against mother and molesting Au.M. Therefore, he had not made subsequent reasonable efforts to correct the problems that had caused the minors to come before the court, and providing services to him would not be in the minors' best interest.
The no-contact order as to mother would also apply as to the minors, pending further court order. The Department was charged with discussing the matter with the minors' therapist to determine when, if ever, they could have contact with father: "At some point father may be allowed contact. I need therapeutic input and the Department's input as to when that is to occur."
Father contends the court erred by denying reunification services because (1) there was no substantial evidence to support the court's finding of severe sexual abuse (§ 361.5, subd. (b)(6)), (2) father had made a reasonable effort to treat the problems which caused him to fail to reunify with the minors in the prior proceeding (§ 361.5, subd. (b)(10)), and (3) reunification services for father were in the minors' best interest (§ 361.5, subd. (c)). Father also contends the juvenile court erred by denying visitation without finding that visits would be detrimental to the minors, or that if the court made an implied finding to that effect it was not supported by the evidence. We disagree with all contentions.
Even when the juvenile court has denied reunification services to a parent, he or she may still be entitled to visitation. Although the statutory scheme strongly favors visitation so long as reunification is still possible, the balance shifts after services have been denied. Therefore, we first address father's contentions regarding the denial of reunification services followed by the denial of visitation.
Reunification services are normally offered to parents whose children are removed from their custody, so as to eliminate the conditions leading to removal and to further the goal of preserving the family whenever possible. (§ 361.5, subd. (a); In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) However, the juvenile court need not offer reunification services if clear and convincing evidence shows that conditions exist which would make it futile or detrimental to the minors to attempt reunification. (§ 361.5, subds. (b)(2)-(b)(15), (e)(1); In re T.M. (2009) 175 Cal.App.4th 1166, 1171-1172.) Even where grounds exist to bypass services under section 361.5, subdivision (b), the court may offer services if it finds by clear and convincing evidence that reunification is in the minors' best interest. (§ 361.5, subd. (c).)
Because reunification orders are within the juvenile court's broad discretion to fashion dispositions in the minors' best interests, we review such orders only for abuse of discretion. (See In re Baby Boy H., supra, 63 Cal.App.4th at p. 474.) Although the court was required to make its supporting findings by clear and convincing evidence, we do not apply that standard; we view the evidence most favorably to the order and uphold the order if substantial evidence supports it. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) We conclude substantial evidence supports the court's order denying reunification services.
Section 361.5, subdivision (b)(10), provides that the juvenile court may deny reunification services if it has found by clear and convincing evidence that "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling . . . and . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of the child from that parent." Here, the juvenile court expressly found that father had not made such a reasonable effort. Substantial evidence supports that finding.
The juvenile court originally removed the minors from both parents because of the domestic violence between them, among other things. Father's reunification services were thereafter terminated because he did not take part in any court-ordered programs.*fn6 He has been imprisoned for inflicting domestic violence on mother. Yet, despite the determinations of the criminal courts, he still persists in his claim that mother made up those charges to steal his children from him.
It is true that the "reasonable effort to treat" standard of section 361.5, subdivision (b)(10), is not synonymous with cure. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) But if a parent does not admit the problems that caused his failure to reunify with his children, it follows that he cannot make a reasonable effort to treat those problems. It is not enough merely to attend a treatment program, required as a condition of his parole, which he insists he does not need.
Because substantial evidence supports the juvenile court's finding that father had not made reasonable efforts to treat his problems, we need not decide whether the court erred by stating that father had not "rehabilitated" from his problems. We review the court's ruling, not its reasoning. (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731.)
Section 361.5, subdivision (b)(6), provides that the juvenile court may deny reunification services if it has found by clear and convincing evidence that "the child has been adjudicated a dependent . . . as a result of severe sexual abuse [defined as including but not limited to sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or oral-anal contact between the parent and the child or a sibling] . . . to the child's sibling . . . , and the court makes a factual finding that it would not benefit the child to pursue reunification services to the offending parent." Here, the court relied on the Yolo County juvenile court's 2008 jurisdictional and dispositional finding that father sexually molested Au.M. -- from which father never appealed (§ 395) -- and the fact that he nevertheless denied the molestation charge (like the domestic violence charges). The court expressly found that the molestation charge was substantiated. The court impliedly found that because father continued to deny this charge after deciding not to appeal the finding of sexual abuse, it would not benefit the minors to offer father reunification services.
Father asserts: "The allegation that was sustained under section 300, subdivision (b) did not state that father actually abused the child. It just stated that mother and the child reported it." This attack on the 2008 findings lacks any merit. The Yolo County juvenile court did not find only that mother and Au.M. had reported father's sexual abuse: the court found that the reports were true. And father's failure to appeal from this finding before it became final renders it immune to collateral attack at this stage.*fn7 (§ 395; In re S.B. (2009) 46 Cal.4th 529, 532; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.)
Substantial evidence supports the juvenile court's express and implied findings under section 361.5, subdivision (b)(6).
When the juvenile court has denied reunification services to a parent, the court "may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." (§ 361.5, subd. (f).) Here, the court impliedly found that visitation would be detrimental to the minors by continuing father's no-contact order until the minors' therapists and the Department agree that visitation can safely occur. Like the denial of reunification, we review the court's order on visitation for abuse of discretion and uphold the order if supported by substantial evidence. (In re J.N. (2006) 138 Cal.App.4th 450, 459; In re Mark L. (2001) 94 Cal.App.4th 573, 581.)
The record shows that the three older minors do not have a positive relationship with father, whom they have not seen since December 2007 and whom they feared when he lived with them. (E.M., who was two months old in December 2007, has never had a relationship with father.) As recently as August 2010, they said they did not want visitation with him.*fn8 His history of domestic violence, his attempts to continue to see mother in violation of the no-contact order, and his apparent molestation of Au.M., have contributed greatly to the older minors' emotional and psychological vulnerability and their need for ongoing counseling and therapy. Furthermore, father's hostility toward mother, with whom the minors are bonded, makes it foreseeable that if granted visitation he would try to turn the minors against her. These factors constitute substantial evidence in support of the court's order, which was well within the court's discretion.
Father cites section 362.1, subdivision (a)(1), which provides that "any order placing a child in foster care, and ordering reunification services" (italics added) shall provide for visitation between the parent and the child, "as frequent as possible, consistent with the well-being of the child," subject only to the proviso that "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(A), (B).) But since the court did not order reunification services, that provision is inapposite.
Father has not shown that the juvenile court erred by continuing the no-contact order with the minors pending further order of the court.
The orders are affirmed.
We concur: RAYE , P. J. BUTZ , J.