In re Jasmine G.
Filed 2/4/13 In re Jasmine G. CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re JASMINE G. et al.,
Persons Coming Under the Juvenile Court Law.
B242299
(Los Angeles
County
Super. Ct.
No. CK75290)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
D.G.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court
of
County.
D. Zeke Zeidler, Judge.
Affirmed.
Janette
Freeman Cochran, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, William D.
Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________________
>
D.G.
challenges juvenile court rulings denying his request for a continuance and
terminating dependency jurisdiction
with a guardianship in place. He also
contends that the visitation order is impermissibly vague. We find no abuse of discretion and affirm.
FACTS
Appellant
D.G. (Father) is the father of Jasmine G. (born in 2007) and a son, D.G. (born
in 2009). He is the stepfather of K.M.
(born in 2001). Father is married to
Christine M. (Mother), the mother of all three children.
In October 2008, the
(DCFS) was alerted that Father sexually abused six-year-old K.M., who reported
that Father exposed his genitals to her on more than one occasion and “rubbed
his penis on her and that ‘white stuff’ came out after she and he rubbed his
penis fast†while they watched a pornographic movie. K.M. also stated that Father “kissed [her]
butt.†Mother took the children to the
home of the maternal grandmother (MGM) when she learned of the abuse.
During an
interview, K.M. disclosed that she kissed Father’s private part but “did not
know it was a bad thing to do.†When she
rubbed Father’s penis, “he had asked her to go faster but she couldn’t so he
finished and white stuff came out.â€
Mother admitted to hitting K.M. with a belt: she was angry because K.M. exhibited
sexualized behavior by exposing herself on a bus. The social worker saw bruises on K.M.’s
buttocks. K.M. indicated that Mother
pinched and twisted her arm, pulled her hair, and used the belt on her back and
buttocks, which hurt. Mother was
uncooperative when the police arrived to take a report: she told the social worker that she did not
want Father to be arrested because her religion requires that she stand by him
“for better or worse.â€
In November
2008, the social worker went to the home of the MGM, who indicated that Mother
lived with Father, where she sometimes takes Jasmine. K.M. resided with the MGM and had not seen
Father since she reported his sexual abuse.
Mother arrived and expressed displeasure with the continuing DCFS
investigation. She planned to continue
living with Father, and felt confident that he would not molest Jasmine. Father called DCFS to say that he was
innocent; he wanted to know how K.M. “came up with these sexual abuse stories.â€
DCFS took K.M. and Jasmine into
protective custody because Mother refused to report the sexual abuse to the
police and continued to live with the perpetrator. They were placed with the MGM, who alerted
the police. During an interview with the
police, K.M. said that she and Father “had sex†and “humped.†She demonstrated how Father made her
masturbate him, and stated that Father licked her unclothed vagina and made her
watch “dirty movies.†Father warned her
not to tell Mother about his conduct.
A dependency petition was filed
alleging that K.M. was physically abused by Mother and sexually abused by
Father, placing Jasmine at risk of harm.
The children are exposed to domestic violence in the parental home. Both parents denied the allegations. On November
13, 2008, the court found a prima facie case for detaining the
children in the care of the MGM. Father
was allowed monitored visits with Jasmine, but was forbidden from contacting
K.M.
The jurisdiction report included
K.M.’s interview with a forensic investigator.
Referring to Father as “Daddy,†K.M. said that she lives with her
grandparents “[b]ecause my dad, he did stuff to me he’s not supposed to,†such
as watching pornography, plus “he humped me†in the parental bedroom, licked
her private part, and had her kiss his penis.
K.M. described herself as “sad†that she was removed from Mother’s
custody. K.M. told the social worker
that Mother “whooped me with a belt†on her bare buttocks. Father “is the only person that has ever
touched her private area or that has asked her to touch theirs.†K.M.’s biological father has been incarcerated
most of her life. Mother and Father
refused to be interviewed.
In December
2008, Mother and Father separated; Mother intended to live with her sister in a
house on the MGM’s property. In January
2009, Mother gave birth to Father’s son D.G., prompting DCFS to file a
Father pose a risk to D.G.’s safety. On February 13, 2009, the court found a
Father. The newborn was placed in
Mother’s care, under court supervision.
Father was given monitored visitation.
In an
interview, Mother admitted striking K.M. four times with a belt after the child
exposed herself in public, but denied harming K.M. Mother agreed that she and
Father regularly engaged in mutual slapping or punching, leaving Mother
bruised. Mother once broke a decorative
glass tree over Father’s head. Mother
recounted two incidents of sexual abuse that K.M. disclosed to her: Father asked K.M. if she wanted to have sex
and placed her on his lap with her panties off, and he masturbated in front of
the child. Mother believes that K.M. is
telling the truth. Father attended eight
sessions of a sexual abuse treatment program.
He consistently denied abusing K.M., but acknowledged his domestic
violence with Mother.
At the
jurisdiction hearing on April 6, 2009,
Mother waived her right to a trial and pleaded no contest to the petition. Father invoked the
but asked the court to dismiss the petition for insufficient evidence showing a
risk of harm. The court sustained
charges that Mother used inappropriate physical discipline on K.M., leaving
marks and bruises and placing Jasmine and D.G. at risk of harm; Father sexually
abused K.M. on repeated occasions and forced her to watch pornographic movies,
placing K.M. and Jasmine at risk of harm; and Father and Mother have a history
of domestic violence, placing the three children at risk of harm.
Moving to
disposition, the court forbade corporal punishment on the children. Father was ordered to participate in parent
education; domestic violence counseling; individual counseling; and sex abuse
counseling for perpetrators. He was
authorized to have monitored visits with Jasmine and D.G.
In October
2009, DCFS reported that the children are living with Mother in the home of the
maternal grandparents and are happy, healthy and well cared for. Mother was participating in court-ordered
programs. Father attended 21 of 31
sessions in a sexual abuse program; by September 22, Father had missed five
consecutive sessions. He completed
parenting, domestic violence counseling and anger management courses, but
continued to deny engaging in sexual abuse.
His visits with Jasmine and D.G. were inconsistent. Father often requested that D.G. not
participate in visits because the child “cries so much and [ ] he does not feel
there is any bonding there.â€
In November
2009, Mother physically attacked the MGM, then threatened suicide by holding a
knife to her wrists. The police disarmed
Mother at gun point and she was involuntarily hospitalized. DCFS filed a subsequent petition alleging
that Mother engaged in a violent physical altercation in the presence of
Jasmine and attempted suicide, placing the children’s safety at risk. Mother pleaded no contest to the new
petition. On December 30, 2009, after
sustaining a single count that Mother failed to protect the children, the court
ordered her to participate in anger management counseling and undergo random drug
testing. The court detained the children
from Mother and placed them with the MGM.
An April
2010 report indicated that Father has monitored weekly visits with Jasmine and
D.G. He is not living in permanent
housing or working. The sexual abuse
program he attended was axed by budget cuts.
While actively participating in the sessions, he continued to deny the
sustained allegations that brought him into the program. DCFS recommended that Father’s reunification
services be terminated. Father began another
sexual abuse counseling program in May 2010.
The June
2010 status report states that the children are well cared for and loved in the
home of the maternal grandparents. They
are happy, friendly and progressing appropriately. Mother lives on the same property and visits
the children regularly, assists her parents, and gets along with the MGM, but
did not randomly drug test and or enroll in an anger management program. She was given further reunification services.
On June 25,
2010, Father testified regarding his reunification services. He detailed the lessons he has learned from
his classes, such as self-control and not abusing anyone. He denied molesting K.M. The court terminated Father’s reunification
services. Subsequent reports state that
the children are happy and thriving with the maternal grandparents.
Father
filed a request for a modification on November 12, 2010, asking for
reunification services and unmonitored visitation, claiming that he has
resolved all issues that brought the case into the system, is a stable
protective parent, is bonded to the children, and able to provide them with a
safe environment. He has learned not to
watch pornography when children are present or show any body parts to
children. Father’s counselor opined that
he should have unmonitored visits. On
December 13, 2010, the court reinstated Father’s reunification services.
In March
2011, Father’s counselor reiterated support for reunification, describing
Father as responsible, honorable and open to achieving therapeutic goals. Father resided in a one-bedroom apartment and
lives on unemployment benefits and odd jobs.
DCFS noted that Father’s counselor is a trainee, not a licensed therapist,
and argued that it is too risky to give Father unmonitored visits with children
who are four and two years of age. The
court ordered Father to undergo an assessment by forensic psychologist. Father’s counselor insisted that Father is
not in denial and is a fit parent who deserves unmonitored visits.
Father, Mother and the MGM concur
that Father’s weekly visits with the children go well. Mother continued to miss drug tests and
tested positive in June and July 2011.
DCFS recommended that Mother’s reunification services be terminated.
The court
began a contested hearing regarding Father in April 2011. Father testified that he lived with Mother
since K.M. was 10 or 11 months old.
Initially, he admitted misconduct on one occasion. As he described it, he was watching
television when K.M. entered the room.
He told her to pull her pants down and she got on top of him, at which
point he stopped. He was clothed. The court asked, “Did you ever sexually
molest [K.M.]?†and Father replied “No.â€
He denied watching pornography with K.M.
Father clarified that the social worker “told me on the phone that if I
don’t come in this court and say that I did that, then I will never see my kids
because the court is going to say I’m in denial . . . .†Father has continually denied molesting K.M.
during all of his sexual abuse therapy sessions.
Father’s
counselor testified that Father has no risk factors for engaging in sexual
abuse, such as a history of substance abuse, being a victim of sexual abuse
himself, and having family attachment issues.
He did not perform any standardized tests to determine Father’s
propensity for sexual abuse because he is not qualified to do so. When the counselor wrote in a letter that
Father is not in denial, he meant that Father understands the charges against
him, but denies that the charges are true.
The counselor was shocked when he heard Father testify, but rationalized
Father’s testimony by saying that Father “felt a lot of pressure from the
social worker.†Father’s counselor did
not contact K.M.’s therapist to engage in a dialogue about the victim before
recommending that Father have unmonitored visitation. Father’s therapist did not have a personal
opinion as to whether Father did or did not molest K.M.
The court
heard expert testimony from Barry Hirsch, who performed a psychological
evaluation on Father. In his report,
Hirsch wrote, “It is clear . . . that [Father] should not have any of the
children in his care†and visits should be monitored until he successfully
completes psychotherapy with a licensed mental health professional and has
conjoint therapy with the children. In
court, Hirsch opined that Father poses a moderate risk of reoffending and
estimated that Father should have another year of therapy before having
unmonitored visits, in a “best case scenario.â€
He believes that the gender of the child does not alter the risk
level. Hirsch testified that Father’s
current counselor is unqualified to treat Father. The court found a continuing risk to the
children and terminated Father’s reunification services.
In October
2011, DCFS reported that Mother missed a random drug screening and had three
positive tests in June and July. DCFS
recommended that her reunification services be terminated. The court terminated Mother’s services on
October 17, 2011, and set a permanent plan hearing for February 6, 2012,
identifying guardianship or adoption as the likely plan. Mother comes daily to the home of the MGM to
help care for the children. The maternal
grandparents have been married for 53 years and are retired. They are committed to providing their
grandchildren with a safe, loving, stable and permanent home, and the children
are closely bonded to them.
On February
6, 2012, Father asked for a contested hearing because he opposes the MGM as
guardian. The court continued the
hearing. On May 8, the day of the
continued permanent plan hearing, the court received a request for a
modification from K.M.’s father, who was finally released from prison. The court continued the matter to June. On June 5, K.M.’s father asked for a
continuance. Father was not at the
hearing because his attorney thought that a continuance was going to be granted
and Father lacked funds to get to the courthouse. The court continued the case for 15 days.
At the
hearing on June 20, 2012, Father did not appear. His attorney asked for a continuance, so that
Father could be present to testify. The
request for a continuance was denied.
Father’s attorney argued that the MGM was not an appropriate guardian: he has had “immense difficulty in getting his
visitation with the children†because the MGM “comes up with excuses as to why
Father should not be able to visit†on the days scheduled by the social
worker. Over Father’s objection, the
court granted a guardianship to the maternal grandparents and terminated
dependency jurisdiction. Father appeals.
DISCUSSION
1. Denial of a Continuance
The court
has discretion to grant or deny requests for a continuance, giving “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.†(Welf. & Inst. Code, §
352, subd. (a).)
title="">[2] A request for a continuance must be made in
writing at least two court days prior to the hearing date, together with
declarations “detailing specific facts showing that a continuance is necessaryâ€
unless the court for good cause entertains an oral motion for a
continuance. (Ibid.) The denial of a
continuance is reviewed for an abuse of discretion and will not be overturned
unless it was arbitrary, capricious, patently absurd and resulted in a manifest
miscarriage of justice. (In re
Karla C. (2003) 113 Cal.App.4th 166, 180.)
This
dependency case began in the fall of 2008, when Jasmine was one, and D.G. was
detained from Father shortly after his birth in January 2009. With children of such tender years, the
Legislature has made clear that dependency proceedings must be concluded as
soon as possible. The case lasted for
three and a half years before a guardianship was established. Jasmine and D.G. lived the entire time with
(or next door to) the maternal grandparents, and are closely bonded with
them. Father never progressed beyond
monitored visitation because he continuously denied the wrongdoing alleged in
the sustained petition, even after K.M. described his conduct in great
detail. His reunification services ended
in August 2011.
As the case
wound to a close, Father was in no position to take custody of his
children. His only argument was that the
MGM should not be the children’s guardian—even though the MGM effectively did
all the parenting of his children—because she did not cooperate with Father’s
visitation schedule. It is not an abuse
of discretion to deny a continuance if doing so would merely prolong the
dependency case when the parents are unable to take custody and children want
to stay with their grandmother. (
131 Cal.App.4th 1501, 1510-1511.)
The permanent plan hearing was
originally scheduled for February 6, 2012.
Three continuances were granted.
No reason was given for Father’s failure to appear on June 20,
2012, the day the permanent plan hearing was finally held. Certainly, there was no “showing of good
cause.†(§ 352, subd. (a).) Father makes no claim that he lacked notice
of the hearing, and his attorney made no written or oral request detailing
specific facts showing why yet another continuance was needed. There was no indication that Father would
appear in court at any time that day.
(Compare In re Hunter W. (2011)
200 Cal.App.4th 1454, 1460, 1464-1465 [trial court should have granted a short
delay after a father appeared for the morning calendar call, then left to
obtain a signed certificate from his treatment program with the intention of
promptly returning to court].) Under the
circumstances, the court properly proceeded and brought this long-delayed case
to a close. It is unimaginable that
Father’s testimony could have persuaded the court to wrench the children from
the happy, stable home where they have spent their lives.
2. Termination of Dependency
Jurisdiction
When
children have been placed with a relative for more than six months, “the court
shall, except if the relative guardian objects, or upon a finding of
exceptional circumstances, terminate its dependency jurisdiction and retain
jurisdiction over the child as a ward of the guardianship . . . .†(§ 366.3, subd. (a).) The court’s ruling is reviewed for an abuse
of discretion. (In re Twighla T. (1992) 4 Cal.App.4th 799, 805;
1018-1019.)
Here, the maternal grandparents
consented to a legal guardianship and welcomed the children into the same safe
permanent home they have known all of their lives. Thus, the court was required to terminate
dependency jurisdiction unless there is proof of “exceptional
circumstances.†The only circumstance
Father points to is the MGM’s alleged failure to comply with a visitation
schedule. This is not exceptional. If the guardians fail to comply with the
court’s visitation order in the future, Father can return to court to seek
enforcement. (§ 366.3, subd. (a).) There need not be a continuing dependency
case to enforce the court’s orders.
3. Visitation
Father contends that the juvenile
court improperly delegated authority over visitation to the legal
guardian. When the court selects
guardianship as the permanent plan, it “shall also make an order for visitation
with the parents . . . unless the court finds by a preponderance of the
evidence that the visitation would be detrimental to the physical or emotional
well-being of the child.†(§ 366.26,
subd. (c)(4)(C).) The court has sole
power to determine whether visitation will occur. (In re
M.R. (2005) 132 Cal.App.4th 269,
274; In re S.H. (2003) 111
Cal.App.4th 310, 319; In re Julie M.
(1999) 69 Cal.App.4th 41, 48-49.)
Once visitation is ordered, the court may delegate responsibility for
managing details such as the time, place and manner of visits, none of which
affect a parent’s defined right to see his or her child. (In re
Chantal S. (1996) 13 Cal.4th 196, 213; In
re Moriah T. (1994) 23 Cal.App.4th 1367, 1374; In re T.H. (2010) 190 Cal.App.4th 1119, 1123.)
The visitation order must give some
indication of how often visitation should occur. (See In
re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009 [an order giving a
parent “reasonable†visits is sufficient]; In
re Moriah T., supra, 23
Cal.App.4th at pp. 1375-1376 [court specified that visitation must be
“consistent with the well-being of the minorâ€].) A guardianship order authorizing visits,
without more, is unacceptably vague. The
court cannot “allow[ ] the guardian to decide whether visitation actually will
occur†and thereby “transfer this important decision to the possible whims of the
legal guardian.†(In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1313-1314. See also In
re Kyle E. (2010) 185 Cal.App.4th 1130, 1136 [the court’s written order
allowing visitation but not specifying the frequency or even “regular†visits
is impermissible] and In re Grace C. (2010)
190 Cal.App.4th 1470, 1478 [court must specify frequency of visits].
The court order states that Father
is entitled to visits “[m]onitored by an approved monitor at least one time per
week. Guardian is to ensure parents
receive their visits.†This order is
sufficient because it guarantees weekly visits (at a minimum) and orders the
guardian to ensure visitation
(Compare In re S.H.,
number of visits].) Because the order
specifies a minimum number of weekly visits, Father’s challenge fails.
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
CHAVEZ, J.
name="_ftn1" title="">[1] Mother
and K.M. are not parties to this appeal.
name="_ftn2" title="">[2] All
statutory references are to the Welfare and Institutions Code.
