In re J.S.
Filed 1/15/14 In re J.S. CA1/4
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re J.S., a Person Coming Under the Juvenile Court Law.
MARIN COUNTY
HEALTH & HUMAN SERVICES,
Plaintiff and
Respondent,
v.
J.S., et al.,
Defendants and Appellants.
A137671
(Marin
County
Super. Ct. No. JV25193A)
J.S. (Father) and A.R. (Mother)
appeal an order of the juvenile court continuing
its supervision of their daughter, J.S. (Minor) and requiring Father to submit
to a polygraph test as part of his service plan. We shall affirm the order.
We are familiar with the background
of this case through our review of an earlier appeal in this matter, which
challenged jurisdictional and dispositional
orders of the juvenile court with respect to Minor. (In re
K.S. (Mar. 26,
2012, A131951) [nonpub. opn.].)
As we explained in
Human Services (the Department) filed petitions in October 2010 pursuant to
section 300 on behalf of two half-sisters, then 12-year-old K.S. and then
two-year-old Minor. Mother is the mother
of both K.S. and Minor. Father is K.S.’s
stepfather (and paternal uncle) and Minor’s father. Evidence from the jurisdiction report and the
jurisdictional hearing indicated K.S. had told a social worker that Father had
been touching her inappropriately for three years. He had touched her on her knees and thighs,
and had tried to touch her on her
legs. K.S. reported Father had touched
her on her “ ‘ private part,’ †and had “ ‘put his penis in
[her] private.’ †K.S. also
reported that Father would look through the curtain in her room when she was
changing her clothes.
name="_ftnref3" title="">[3] At the jurisdictional
hearing, K.S. testified that Father had intercourse with her on more than
one occasion. On one of these occasions,
as she told him to stop, Father said, “ ‘Oh no, you’re gonna see how good
it feels having it, having sex.’ â€
Minor was sleeping in the bedroom on a couple of occasions when Father
molested her. Mother would call K.S. “ ‘a
slut, a whore, a prostitute’ †because she went out with boys, and K.S.
testified that Mother hit her regularly and yelled at her without provocation. Mother and Father would hit Minor.
There was conflicting evidence about
whether K.S. told Mother that Father had sexually abused her. Mother told a social worker she thought K.S.
was lying in order to separate Mother and Father or because Father had
restricted her television and radio use.
Mother later expressed uncertainty about whether the abuse had taken
place. Father denied having sexually
abused K.S. However, Mother had sought
and obtained temporary orders restraining Father from having contact with the
children except court-ordered visitation and reported that he had moved out of
the family home.
The juvenile court found K.S.’s
testimony “ ‘compelling, credible, and trustworthy,’ †found that Mother not only had failed to
protect K.S. but would also fail to protect Minor, and found it had
jurisdiction over both children.
After a dispositional hearing, the
juvenile court continued Minor in foster care.
Both Mother and Father received
Minor.
Mother and Father appealed the
jurisdictional and dispositional orders, and in In re K.S., we affirmed the orders, concluding they were supported
by substantial evidence. In doing so, we
concluded that the evidence supported a conclusion that Father’s actions in
sexually abusing K.S. placed Minor at risk of harm. (In re
K.S., supra, at p. 18.)
In August 2011, the juvenile court
granted the Department discretion to place Minor in Mother’s care, and Minor
returned to Mother at the end of that month. K.S. remained in foster care.
A report prepared for a September
2011 six-month status review hearing indicated that Father had participated in
sex offender therapy because it had been mandated by the court in order for him
to reunify with Minor, but that he continued to maintain that he had not engaged
in any sexually inappropriate behavior with K.S. Father said he had treated group therapy as
an opportunity to learn about the mistakes of others, but he did not believe it
was necessary for his own rehabilitation or for the healing of his family. Father’s therapist reported that Father had
been consistent in denying that he had done anything inappropriate; the
therapist believed there was a “50/50 chance†that Father had behaved
inappropriately toward K.S. Father had
expressed interest in taking a lie detector test, something the therapist said
most clients would be afraid to take. The
juvenile court continued its jurisdiction over Minor and ordered continued
family maintenance services.
The Department prepared a status
report for a March 2012 family maintenance review hearing. (§ 364.)
The report indicated that Minor was still living in Mother’s care, and
that Mother’s parenting skills had improved. Father had attended his sex offender group
therapy regularly, and continued to deny having behaved inappropriately toward
K.S. or Minor. The group therapist stated
that Father had been cooperative in therapy and had participated in the group,
and recommended that Father return home and continue to receive family
maintenance services. Mother believed
the family therapy she had been attending had improved her skills as a parent,
did not believe the dependency case should continue, and believed she could “be
protective†if Father returned to the home and that Minor would be safe with
him. The juvenile court continued its
supervision of Minor, ordered continued family maintenance services, and
allowed Father to return to the home.
In preparation for a status review
hearing, the Department filed a report in September 2012, noting that Minor was
living with Mother and Father. Mother
reported that Minor and Father had a positive relationship, Minor had told a
social worker she liked playing with Father, and the social worker said their
games appeared to be appropriate. Father, Mother, and Minor had attended family
therapy, and Mother was attending individual therapy. Mother’s therapist reported that Mother said
she provided constant supervision of Minor, and the therapist believed Mother
would seek help if she saw anything of concern.
Father had been allowed to leave his group sex offender therapy at the
end of April 2012. He had not
acknowledged behaving inappropriately toward K.S. Father had begun individual sex offender
therapy in May 2012, but had found it difficult to attend consistently because
of health problems, and had participated since about August 2012.
Father’s individual therapist was
concerned that Father seemed to have no empathy for K.S., and said that empathy
was a “barrier to abuse.†She told the
social worker that Father had “not met any of the goals of therapy including
understanding the cycle of abuse, understanding patterns and impulses that
cannot be controlled, acquiring skills to work with triggers, developing
empathy for the victim, and repairing the relationship.†She said that “if [Father] did not receive
the treatment that he needed, and was actually a sex offender, he would offend
again.†The therapist recommended that
Father submit to a polygraph test for therapeutic purposes; such a test could
be used as “a way to confront clients about their denial, encourage them to be
honest, and to be accountable for their actions,†and recommended that Father
continue his treatment to prevent possible recidivism. The therapist recommended that Father not see
Minor changing clothes, and that he not provide sexual education to Minor. Mother agreed to abide by these
recommendations.
The Court Appointed Special Advocate
(CASA) recommended that the case be dismissed.
Among other things, the CASA stated that Mother appeared to have applied
many of the positive parenting techniques she had learned, and that the bond
between Father and Minor appeared strong.
The Department filed an addendum
report in December 2012. According to
this report, Minor told a social worker at the end of September that she slept
with Father. Minor asked the social worker
not to tell her former foster parent because the former foster parent would
take her away from her home if she knew.
Minor also told the social worker she would change clothes in front of
Father, and asked the worker not to tell the former foster parent. Minor said that neither Father nor anyone
else had touched her inappropriately. The social worker spoke with Mother, who said
Minor wanted Father by her side, and that Father stayed with Minor in bed until
Minor fell asleep. Mother and Father
would then switch places, so that Mother slept with Minor and Father slept
alone. Mother denied that Minor changed
clothes in front of Father. Mother
agreed to comply when the social worker told her Father could not sleep with
Minor.
The addendum report also explained
that, in October 2012, Minor told the social worker “that she no longer sleeps
with her father however then she stated that she ‘sometimes’ sleeps with her
father.†When this happened, according
to Minor, Father was clothed and Minor was wearing a nightgown or pajamas, and
Father touched only her arms. Minor did
not report any inappropriate play. Mother said Minor had not been sleeping with
Father. The social worker asked Father
about sleeping in the same bed with Minor, and Father said he “felt this ha[d]
been made into a big issue when it was just a small thing.†He believed it was natural for a father to
sleep with his young children, and that it was “ ‘crazy’ †to think he would
harm his daughter. He also said Minor
was having trouble adjusting to the new routine of not sleeping with Father,
but that he and Mother had been firm about enforcing this rule.
Finally, the addendum report
explained that Father stated that he would be willing to take the polygraph as
long as he did not have to pay for it.
worker testified that Father’s sex offender therapist was concerned that Father
had made so little progress and that a polygraph would allow him to be more
honest and make more progress within his therapy. She also said that if the polygraph test
indicated there had been no sexual abuse, there would be no reason to keep the
dependency case open. If the test
indicated sexual abuse had occurred, the information would be used only in a
therapeutic setting, and the social worker would recommend that the Department
provide six months more of services and that Father continue to participate in
individual sex offender therapy. The
Department would have the results of the polygraph test, and the social worker
did not know whether the results would be included in any report to the court.
The juvenile court continued its
jurisdiction over Minor, finding that conditions that would justify the initial
assumption of jurisdiction under section 300 still existed or were likely to
exist if supervision were withdrawn. The
court continued family maintenance services pursuant to an updated case plan,
which included the requirement that Father submit to a polygraph test.
A.
Continued Jurisdiction
Appellants contend there is no
substantial evidence to support the juvenile court’s finding that Minor was at
continued risk of harm in the absence of court supervision. “In reviewing the sufficiency of the evidence
on appeal, we look to the entire record for substantial evidence to support the
findings of the juvenile court.
[Citations.] Evidence sufficient
to support the court’s finding must be reasonable in nature, credible, and of
solid value; it must actually be substantial proof of the essentials that the
law requires in a particular case.†(
172.) We consider the evidence in a
manner favorable to the prevailing party, resolve all conflicts in favor of the
juvenile court’s order, and uphold the trial court’s order unless no rational fact
finder could have reached the same conclusion.
(In re Yvonne W. (2008) 165
Cal.App.4th 1394, 1401; In re Athena P.
(2002) 103 Cal.App.4th 617, 629.)
Applying these standards, we
conclude substantial evidence supports the juvenile court’s finding. In the previous appeal in this dependency,
Father molested Minor’s sister and that Mother did not assist her daughter, and
concluded it provided substantial evidence to support the juvenile court’s
assumption of jurisdiction over Minor. (
We recognize that since that time, Father has participated in group sex
offender therapy and that there have been no allegations that he sexually
abused Minor. However, there was
evidence that Father’s therapist believed he had not met any of the goals of
therapy, including understanding the cycle of abuse, working with triggers, and
developing empathy for the victim. There
was also evidence that even after extensive therapy, Father lay in bed with
Minor as she fell asleep, was present while she was changing her clothes, and
was aware that those activities might cause concern in the dependency
proceedings, and that Mother did not prevent him from doing so. From these facts, the juvenile court could
reasonably conclude continued therapy and supervision were necessary to protect
Minor.
Appellants also argue that Father’s
refusal to admit abusing K.S., standing alone, is insufficient to continue
jurisdiction, and that it would be “Kafkaesque†to require him to admit to
sexual abuse he contends never happened in order to end juvenile court
jurisdiction over his daughter. (See
Cal.App.4th 1738, 1752–1753 [recognizing risk that innocent parent might feel
compelled to admit to sexual abuse in order to receive reunification
services].) Our conclusion, however, is
based on the record as a whole, which provides evidence that Father did indeed
sexually abuse K.S. and that the progress he and Mother have made is
insufficient to protect Minor in the absence of continued juvenile court
supervision.
We are not persuaded otherwise by appellants’
reliance on In re N.S.,
which the Court of Appeal concluded the evidence did not support the
continuation of juvenile court jurisdiction.
The jurisdiction there was originally based on the father’s inability to
manage his stress and anger. (
no evidence the father had acted impulsively or had a temper outburst, and the
evidence showed he had complied completely with his case plan and made good
progress in therapy, and his therapist could identify no factors that left the
minor at risk in the father’s care. (
therapist had expressed concern about his lack of progress in therapy;
moreover, in the context of this case, the evidence that Father got into bed
with Minor at bedtime and was present as she changed clothes could reasonably
raise concerns for Minor’s safety.
B.
Polygraph Test
Appellants contend the juvenile
court erred in requiring Father to submit to a polygraph test as part of his
case plan.
A juvenile court has broad
discretion to determine what would best serve a child’s interest and fashion a
dispositional order, which may include therapy for a parent. (In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1006; In re Lamonica H. (1990) 220 Cal.App.3d 634, 649–650;
644, 652; § 362, subd. (a).) Appellants
have not shown an abuse of that discretion here. It is clear that Father’s therapist
recommended, and the juvenile court ordered, a polygraph test in order to
further the purposes of Father’s therapy; that is, in order to assist him in being
honest in therapy and in taking responsibility for the actions that led in part
to the dependency. The therapist had
opined that if Father was actually a sex offender and did not receive the
treatment he needed, he would offend again.
The juvenile court could reasonably conclude the polygraph test would
assist Father in benefitting from that treatment and thereby reduce the risk of
harm to Minor.
We note that in a different context,
the court in Brown v. Superior Court
(2002) 101 Cal.App.4th 313, 320–321, considered the propriety of requiring, as
a condition of probation, that a probationer submit to polygraph testing as
part of his therapy. In response to the
probationer’s challenge, the court concluded that “periodic polygraph
examinations in furtherance of [the probationer’s] stalking therapy program is
a valid condition of probation because it is reasonably related to the crime of
which [he] was convicted and to possible future criminality.â€
at p. 321, italics omitted.) Similarly
here, we see no abuse of the lower court’s discretion in ordering a polygraph
test as part of Father’s sex offender therapy.
Appellants argue, however, that under Evidence
Code section 351.1, subd. (a), the results of a polygraph examination
are inadmissible in court, that future recommendations of the therapist and
social worker will be based on those inadmissible results, and that therefore
they will impermissibly influence the court in making future decisions
regarding Father’s parental rights.
name="_ftnref7" title="">[7]
This argument fails. First, Evidence Code section 351.1
provides that the results of a polygraph examination are not admissible “in any
criminal proceeding . . . or in any
trial or hearing of a juvenile for a criminal
offense, . . . unless all parties stipulate to the admission of such
results.†(Italics added.) This statute does not prohibit use of
polygraph tests in dependency proceedings.
(See In re Kathleen W. (1987)
190 Cal.App.3d 68, 72.) Rather, subject
to a foundational hearing, the results of a polygraph test may be admissible if
the results are relevant to the primary issue before the court. (Id.
at p. 73; In re Jordan R. (2012) 205
Cal.App.4th 111, 122.) In any case,
based on this record, it would be speculation to conclude the trial court will
make orders based on the results of a polygraph test, whether or not admissible. In fact, the juvenile court indicated that if
the results of a polygraph test were in a social worker’s report, the court
would disregard that information. Accordingly, we reject appellants’ argument.
The
order appealed from is affirmed.
_________________________
Rivera,
J.
We concur:
_________________________
Reardon, Acting
P.J.
_________________________
Humes, J.
name="_ftn1" title=""> [1]
We take judicial notice of the record on appeal in In re K.S., A131951.
name="_ftn2" title=""> [2]
All undesignated statutory references are to the Welfare and Institutions Code.
