In re L.E.
Filed 6/19/13 In re L.E. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
In re L.E., a Person Coming Under the Juvenile Court Law.
2d Juv. No. B244880
(Super. Ct.
No. J068635)
(Ventura
County)
VENTURA COUNTY HUMAN SERVICES AGENCY,
Plaintiff and
Respondent,
v.
B.E.,
Defendant and
Appellant.
B.E., the father of
L.E., a dependent child (Welf. & Inst. Code, § 300, subd. (b)),
appeals orders of the
County Juvenile Court which grant the Ventura County Human Services Agency
(HSA) supervision over his custody and visitation of L.E. We conclude, among other things, that: 1) a Court of Appeal decision, which reversed
a jurisdictional finding that B.E. engaged in "inappropriate sexual
boundaries" with L.E., did not terminate the juvenile court's jurisdiction
to place limits on B.E.'s custody and visitation rights based on the child's
best interests; and 2) substantial evidence supports the juvenile court's
orders. We affirm.
FACTS
L.E. was born in
September 2002. B.E. is his father. In February 2011, L.E.'s parents divorced and
shared custody of L.E.
In 2011, L.E.'s mother
brought L.E. to a hospital claiming B.E. had sexually assaulted him. The hospital referred the matter to the Los
Angeles County Department of Children and Family Services (DCFS).
B.E. told a
"hospital social worker" that "he had been naked in front of his
son, but had never been inappropriate with him."
In March 2011, DCFS
filed a section 300 petition alleging that B.E. sexually abused L.E. "by
placing [his] nude body and penis against [L.E.'s] buttocks." Following a detention hearing, "the
court found a prima facie case had been established" under section 300,
subdivisions (b) and (d).
In April 2011, DCFS
filed "an amended section 300 petition," alleging L.E.'s mother had
tested positive for drugs which endanger L.E.'s "physical well-being and
put him at risk of physical harm."
(§ 300, subd (b).) L.E. was
placed with his maternal grandmother.
The Los Angeles County
Juvenile Court held a "contested adjudication trial." In June 2011, the court struck the DCFS
sexual abuse allegation. But it
sustained the petition against B.E. on the ground that he "exhibited
seriously inappropriate behavior and inappropriate sexual boundaries with his
child in his home." The court said
B.E. "has no problem at all with the fact that he walks around his house,
naked." The court found L.E.
"was suffering from severe emotional damage, and that there were no
reasonable means to protect him without removal from [B.E.'s]
custody." B.E. was ordered "to
participate in counseling to address 'sexual boundaries.'" On July
13, 2011, B.E. appealed.
On October 7, 2011, L.E.'s mother filed a section
388 petition. She alleged that she had
enrolled in an "in-patient program in Ventura
County" and "the court
returned [L.E.] to her care." She
requested the Los Angeles County Juvenile Court to transfer jurisdiction
"to Ventura county." The court granted the petition and
transferred the case to Ventura County. The Ventura County Superior Court accepted
the transfer on January 19, 2012.
On March 22, 2012, HSA filed an "acceptance of
transfer report." It recommended
that Family Maintenance (FM) services be provided to the mother and family
reunification services be provided to B.E.
After a hearing, the Ventura County Juvenile Court ordered HSA to
provide FM services to the mother and family reunification services to
B.E. It said that "[f]actors
contributing to the continued court dependency of the child" include the
mother's need "to complete drug counseling."
On June 7, 2012, the Court of Appeal, Second
District, Division Eight reversed the Los Angeles County Juvenile Court's
jurisdictional findings against B.E. It
held the sexual abuse jurisdictional finding was not supported by substantial
evidence. It also reversed the order
removing L.E. from B.E.'s custody. It
said, "Here, DCFS has cited no case, and our independent research has
found none, in which dependency jurisdiction was based exclusively on the fact
that a parent walked around the family home nude in the presence of a same sex
child."
After reviewing the
decision, HSA recommended that the juvenile court dismiss the dependency
case. But L.E.'s attorney objected. The attorney said L.E. "is resistant to
unsupervised visits" with his father.
He was concerned about the impact those visits would have on L.E.'s
well-being.
HSA changed its position
and recommended that it should maintain authority to monitor the visits. It had received an assessment from L.E.'s
therapist who said L.E. did not want to be alone with his father. That psychologist noted that L.E. experienced
such anxiety about visits with his father that L.E. should receive treatment
from "Therapeutic Behavioral Services."
The juvenile court ruled
that it had continuing jurisdiction and the appellate decision did not prevent
it from making appropriate orders relating to L.E.'s well-being.
HSA recommended that
B.E. should receive increased visitation time with L.E. At a contested hearing on September 11, 2012,
an HSA worker testified that L.E. was not ready to spend a "whole
weekend" with his father and was "uncomfortable" spending nights
with his father. The court heard
additional testimony from the parents and received medical assessments about
L.E.'s mental health and severe emotional problems.
The juvenile court found
expansion of B.E.'s visitation was appropriate, but it should proceed
cautiously given L.E.'s current mental and emotional condition. It found that proceeding too quickly with
unrestricted visitation would be harmful to L.E.'s well-being. It ruled:
1) "The child shall remain in or be released to the physical
custody of the mother and father under the supervision of [HSA]," 2)
"[v]isitation between the child and the father shall be consistent with
the well-being of the child and as arranged by [HSA]," 3) the father shall
receive "not less than three unsupervised visits per week of four hours
each," 4) "[HSA] shall provide Family Maintenance services to the
child and the parents until the next hearing," 5) "[t]he parents
shall comply with and participate in the [HSA] Case Plan . . .
including any ongoing treatment program," and 6) "[HSA] has
discretion to liberalize visitation between the father and L.E. to include overnights
on days during the week and for weekends."
The court set a six-month review hearing. B.E. appealed these orders.
DISCUSSION
The
Court's Actions after Reversal of the Jurisdictional Finding against B.E.
B.E. notes that the June
7, 2012, Court of Appeal decision reversed the jurisdictional finding that he
sexually abused L.E. and the order that removed L.E. from his custody. He contends that on remand this decision
precluded the juvenile court from maintaining further jurisdiction or considering
new evidence about L.E.'s condition. He
argues the court erred by considering new evidence, by subjecting his
visitation rights to HSA's continuing supervision, and by denying his right to
immediate and unrestricted "overnight visitation and shared custody."
HSA notes the judgment the
Court of Appeal reversed was entered on June 14, 2011. It claims: 1) the juvenile court properly
retained jurisdiction to decide L.E.'s best interests, and 2) it correctly
considered evidence about L.E.'s well-being during the period when the case was
on appeal. We agree.
The reversal of the
jurisdictional finding against B.E. did not divest the juvenile court of
jurisdiction over L.E. L.E. was a
dependent child subject to the court's jurisdiction based on a separate
jurisdictional finding of drug abuse by his mother. (§ 300. subd. (b).) The court may properly decide not to dismiss
the proceeding until after it determines whether such action would be
"detrimental to the child." (
Cal.App.4th 1124, 1134-1135; In re
Francecisco (1971) 16 Cal.App.3d 310, 314.)
"'[A]n appellate
opinion . . . reviews "'the correctness of a judgment as of the
time of its rendition . . . .'"'" (In re
Ryan K. (2012) 207 Cal.App.4th 591, 598.) "It does not apply to new developments
which occurred during the pendency of the appeal." (Ibid.) "'[W]hen an appellate court reverses a
prior order of the [juvenile] court on a record that may be ancient history to
a dependent child, the [juvenile] court must implement the final appellate
directive in view of the family's current
circumstances and any developments in the dependency proceedings that may have
occurred during the pendency of the appeal.'" (Id.
at p. 597, italics added.)
The facts regarding
L.E.'s condition post-judgment (after June 14, 2011) were not before the Court
of Appeal. The Court of Appeal reversed
findings involving B.E., but it did not limit the juvenile court's jurisdiction
over L.E. In fact, the court affirmed
the remaining orders of the juvenile court which included an April 13, 2011,
order that L.E. receive mental health treatment. It did not set aside the juvenile court's
finding that L.E. had "severe emotional" problems. In addition, it did not preclude the juvenile
court from considering facts that occurred while the case was on appeal. Consequently, the appellate decision
"did not deprive the juvenile court of the authority to act in the best
interests of [the child] when it reasserted jurisdiction after remand . . . ." (In re
Ryan K., supra, 207 Cal.App.4th
at. p. 599.)
B.E. suggests the
juvenile court ignored the Court of Appeal decision and decided to re-litigate
the case as if the decision never existed.
We disagree.
The juvenile court
reviewed the appellate decision to make sure its proceedings would conform to
it. It followed the decision by ruling
that the sexual abuse jurisdictional finding against B.E. was "not
true" and that the removal order was "reversed." B.E. has made no showing that the court
relied on any of the evidence about sexual abuse which had previously been
admitted in the Los Angeles County Juvenile Court proceedings. Moreover, the court correctly recognized its
continuing duty "to make orders that are consistent with what should be
done" for L.E.. "[T]he purpose
of any dependency hearing is to determine and protect the child's best
interests." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.)
The juvenile court had
valid grounds to be concerned about L.E.'s well-being during visits with
B.E. HSA presented a June 18, 2012,
letter from Dr. Sevet Johnson, a treating psychologist, who stated, "In
individual therapy sessions [L.E.] has consistently stated, 'I don't want to be
alone with my dad, because I'm scared he might hurt me again.'" Johnson noted that when L.E. was informed he
"would be going back to court to address the type of visits he would have
with his father, he . . . had an increase in acting out behaviors
(such as screaming and hitting others) in the home and school
environments." Because of this,
L.E. had to receive "Therapeutic Behavior Services." L.E. was being treated for
"anxiety." Johnson said L.E.
was "worried about what would happen to him after court."
Moreover, HSA suggests
B.E. is estopped to claim the juvenile court erred by not immediately
terminating HSA's monitoring authority over visitation. It notes that on July 18, 2012, B.E. and the
other parties agreed to a plan to: 1)
continue HSA's current "visitation schedule," 2) to allow HSA to
continue to review whether there should be an increase in overnight and
unsupervised visits, and 3) to have a new therapist conduct a further
"forensic assessment" of L.E.
The court approved this plan and scheduled a review. After a contested hearing, it approved HSA's
recommendations and ruled HSA had discretion to "liberalize visitation
between the father and the child."
B.E. has not shown that the court either acted outside its authority or
that it abused its discretion.
Substantial
Evidence
HSA contends the
juvenile court's orders are supported by the record. It claims they were reasonable because: 1) the court moved toward the goal of
unsupervised visits, but 2) it proceeded cautiously based on substantial
evidence that moving too quickly would harm L.E.. We agree.
B.E. cites to evidence
that he claims supports his position.
But the issue is not whether some evidence supports his claims, it is
whether substantial evidence supports the judgment. (In re
A.S. (2011) 202 Cal.App.4th 237, 244.)
In reviewing the sufficiency of the evidence, we do not weigh the evidence
or decide credibility of the witnesses as that is a matter for the trier of
fact. (Ibid.)
There
is evidence that expanding the visits was a goal that should proceed with
caution. HSA worker Sonia
Hernandez-Franco testified L.E. was receiving unsupervised visits with
B.E. She recommended that B.E. should
receive a total of three "4-hour" visits during the week. She felt L.E. could spend "part of
Saturday" and "part of Sunday with his father." But she determined that L.E. was not prepared
to spend "the whole weekend" with B.E. L.E. told her he is "uncomfortable"
spending the night with B.E. She said,
"[H]e's not ready." Before
going on visits with his father, L.E. experiences "increased anxiety"
and "some behavior issues."
Dr. Johnson's September
7, 2012, assessment reflected that L.E. was being treated for depression. The trial court could reasonably infer that
his father's actions were interfering with his therapy and having a disruptive
impact on L.E.'s well-being. Johnson
said, "In individual therapy sessions, in the last 3 months [L.E.] has
increased regression and withdrawal as evidenced by refusing to meet with TBS
Specialists and stating that, 'My dad doesn't want me to talk to
you.'" L.E. said the "new
visitation arrangements" were causing him to experience
"anxiety." Johnson concluded
this anxiety was increasing L.E.'s depression and was having a negative impact
on his mental health. She said that L.E.
"has shown increased anxiety as evidenced by fleeing environments or
situations when overwhelmed, shutting down and refusing to engage in therapy
sessions, and expressing worry about what would happen if father learned of his
verbalizing himself in sessions."
L.E. "has shown increased depressive symptoms such as expressing
hopelessness and low self-worth."
B.E. testified L.E.
"needs therapy." He claimed
L.E. has "been coached to say things by his mother." But he admitted telling L.E. that at therapy
sessions "he doesn't have to talk to anybody anymore." L.E.'s mother testified about the severe
emotional impact the visits with B.E. were having on L.E.'s well-being. She said L.E. would complain of headaches,
"chew the skin off of his fingers," and vomit before visits with his
father. When L.E. returned from those
visits, he would become "angry."
He would say, "I don't have to follow your rules. I don't have to do my homework." L.E.'s mother said increased visitation with
B.E. now was not appropriate because L.E. was "out of control" and
that it should wait "until [L.E. was] more stable in therapy."
The trial court found,
"We're moving to more time with dad, but I think it would be harmful to
just simply switch everything up at this point . . . without getting
more therapy in place, getting [L.E.] more stabilized." "'Although a parent's interest in the
care, custody and companionship of a child is a liberty interest that may not
be interfered with in the absence of a compelling state interest, the welfare
of a child is a compelling state interest that a state has not only a right,
but a duty, to protect.'" (
protection requires the court to focus on the child's placement and well-being,
rather than on a parent's custody challenge." (Ibid.) In making its orders, the juvenile court may
properly consider the emotional harm suffered by the child. (Id.
at pp. 1425-1426.) B.E. has not shown
the evidence is insufficient to support the court's orders. Nor has he shown any abuse of discretion.
We have reviewed B.E.'s
remaining contentions. He raises some
issues that were not raised in the trial court and consequently waived. As to his remaining contentions, we conclude
he has not shown error.
The orders are
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Tari
L. Cody, Judge
Superior
Court County of Ventura
______________________________
Maureen L. Keaney, under
appointment by the Court of Appeal, for Defendant and Appellant.
Leroy Smith, County
Counsel, Oliver G. Hess, Assistant County Counsel, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Welfare
and Institutions Code.
