Michael C. v. Super. >Ct.>

 

 

 

 

 

 

 

Filed 8/7/13  Michael C. v. Super. Ct. CA4/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

COURT
OF APPEAL, FOURTH APPELLATE DISTRICT

 

DIVISION
ONE

 

STATE
OF CALIFORNIA

 

 

 
>

MICHAEL C.,               Petitioner,               v.   THE SUPERIOR COURT OF IMPERIAL COUNTY,               Respondent;	D063863     (Imperial County   Super. Ct. Nos. JJP02368 & JJP02369)
IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES et al.,               Real Parties in Interest.

 

            Proceedings for href="http://www.mcmillanlaw.com/">extraordinary relief after reference to
a Welfare and Institutions Code section 366.26href="#_ftn1" name="_ftnref1" title="">[1] hearing. 
Jeffrey B. Jones, Judge.  Petition
denied; request for stay denied.

 

            Childers
& Associates and Ryan D. Childers for Petitioner.

            Michael L.
Rood, County Counsel,
Geoffrey P. Holbrook and Haislip W. Hayes II, Deputy County Counsel, for Real
Party in Interest Imperial County Department of Social Services.

            Ann Cameron
Hadridge for Real Parties in Interest David H. and E.R., Minors.

            Michael C.
seeks writ review of orders terminating his reunification
services regarding his sons, David H. and E.R., and referring the matter to
a section 366.26 hearing.  Michael
contends the doctrine of collateral
estoppel precludes the Imperial County Department of Social Services (the
Department) from relying as the factual basis for subsequent petitions on
allegations that he subjected E.R. to sexual abuse.  We deny the petition.

FACTUAL AND
PROCEDURAL BACKGROUND

            In December
2010, seven-year-old David and six-year-old E.R. were taken into protective
custody.  The Department petitioned on
behalf of the two children under section 300, subdivision (b), alleging they
were at substantial risk because of Michael's use of methamphetamine.  The petitions also alleged law enforcement
officers had seized journals written by Michael in which he described how he
had forced and was planning to force E.R. to engage in sex acts with a male
prostitute named Hector and with other people. 
The petitions further alleged pornographic movies and magazines were in
the home within the children's reach; Michael had been arrested for indecent
exposure; blood stains were discovered on the bedding of E.R.'s bed; and E.R.
said that after school each day he and David each separately showered with
Michael.

            The
petition regarding E.R. also alleged under section 300, subdivision (b), that
he was at substantial risk of harm because Michael had sexually molested
him.  It further alleged under section
300, subdivision (d), that Michael had sexually abused him; and under section
300, subdivision (i), that Michael had subjected him to acts of cruelty.  The petition regarding David alleged under
section 300, subdivision (j), that he was at substantial risk because of
Michael's abuse of E.R.href="#_ftn2"
name="_ftnref2" title="">[2]  The children were detained out of the home.

            The social
worker reported Michael said the writings in his journals were only fantasies
and he had not had either of the children engage in sexual encounters with
himself or anyone else.  He said writing
about his fantasies was a way of satisfying his urges and thoughts.  David and E.R. were interviewed at the Chadwick
Center, but neither boy disclosed
any information about the allegations.

            Psychologist
Beatriz Heller diagnosed Michael with pedophilia and said he was sexually
attracted to males.  She noted,
"While it may be true he has not actually engaged in sexual activity with
his children or other children, including exhibitionism and voyeurism, without
intensive intervention, he is considered to remain at high risk for recidivism
in light of his disavowal of having problems that need treatment, low level of
accountability for his actions and history of behavioral control
problems."  Psychiatrist Alvaro
Camacho provided a psychiatric
evaluation.  His diagnoses included
"Amphetamine Dependence in Partial Remission[,] Consider Mood
disorder . . . [,] Consider Impulse Control Disorder [and]
Consider Pedophilia."  He
recommended the children not live with Michael at that time.  On May
13, 2011, a urine test of Michael was negative for all substances
and a hair follicle test was positive for methamphetamine.

            At the
jurisdictional hearing on July 19, 2011, the court found both children were at
substantial risk of serious harm under section 300, subdivisions (b) and (d),
and David was at risk under section 300, subdivision (j).  It found Michael had admitted using drugs in
the home, had written about sexual abuse of E.R. and had been arrested for
masturbating in public.  The court also
found pornographic movies and magazines had been found in the home.  It did not find true the allegations that
Michael had sexually molested E.R. or that he had subjected him to cruelty.

            Subsequently,
in August 2011 the court-appointed special advocate (CASA) for the children
reported E.R. told her Hector would come to his room and put his "pee in
his mouth" and that "my daddy was next to Hector when he did
that."  E.R. also said Hector
touched his private parts.  David said
E.R. had told him about this activity.

            Michael was
evaluated by psychologist Clark Clipson in November 2011.  Dr. Clipson reported Michael did not demonstrate
evidence of deviant sexual interest, including pedophilia.  Dr. Clipson based his conclusion on the fact
Michael did not report sexual interest in pubescent children or demonstrate
such interest on a measure of sexual interest, and he had not written about
sexual fantasies involving a child for a longer time period than six months.

            In December
2011, the Department petitioned under section 388 requesting the court deny
Michael visitation.  The children's
therapist said the children reported seeing Michael perform fellatio on Hector,
that Hector had put his penis in E.R.'s mouth and Michael had had them watch
pornographic movies.

            At the
disposition hearing in December 2011, the court found there had not been clear
and convincing evidence presented to show Michael has a mental disability
making him incapable of benefitting from reunification services under section
361.5, subdivision (b)(2).  It noted,
although the children's therapist recommended Michael not visit the children,
that position was based on an assumption the children had been sexually abused,
but the court had found only that Michael had failed to supervise them properly
and they were at risk of sexual abuse under section 300, subdivisions (b) and
(d), and David was at risk under section 300, subdivision (j).  The court removed the children from Michael's
custody and ordered reunification services. 
It ordered reasonable visitation supervised or arranged by the Department.

            In July
2012, the CASA reported the children had disclosed that Hector had sexually
abused E.R. while Michael watched.  She
reported they also said Michael had had them observe while he and Hector
performed sexual acts, and there were pictures on the home computer of E.R.
with penises in his mouth.  The CASA
reported E.R. disclosed he did not like it when "Hector would put his pee
pee[] in my butt."  David said his
daddy would say "Hector's pee was hard and strong and E.R. needed to
learn."  The foster parents reported
that after the boys began having visits with Michael, they became defiant, did
not listen and E.R. began stealing.  The
CASA and the boys' therapist also reported a deterioration in the boys'
behavior and school work when visits were expanded.  David said he wanted to live with
Michael.  E.R. said he wanted to continue
to live in the foster home, but did not want to make David angry.

            Michael
participated in the services of his case plan, and his therapist recommended he
be reunited with the children.  The
therapist had been treating Michael for drug and alcohol problems, but Michael
had not admitted pedophilic behavior, so he had not treated him for that
disorder.  At the review hearing on July
26, 2012, the court found Michael had been making substantial progress and continued
the children as dependent children, continued services for an additional six
months and expanded visitation.

            Based on
the court's order for expanded visits and a recommendation by the family
therapist, the Department arranged two overnight visits.  Before the visits, the social worker informed
Michael he must not sleep in the same bed with the children.  However, after the second overnight visit,
the children disclosed they had slept with Michael, and he had scrubbed their
bodies in a shower while they were wearing swim trunks.  The court ordered suspension of overnight
visits.

            In November
2012, the Department filed subsequent petitions under section 342, alleging as
new facts or circumstances that E.R. actually had been molested by Hector in
Michael's presence and E.R. had drawn pictures for his therapist depicting
this; Michael had slept in the same bed with the boys during overnight visits
although instructed not to do so and, during the visits, he had showered them
and scrubbed their bodies except their private parts while they wore swim
trunks.  The petitions also alleged E.R.
had disclosed he does not feel safe with Michael because Michael would hit him
and Michael was "ok when Hector put his peanut (penis) in my mouth."  The court ordered Michael to undergo a
forensic psychiatric assessment.

            In February
2013, at the Department's request, the court suspended visits since the
visitation center refused to allow future visits because of safety concerns,
and reports showed visits were interfering with therapy, the children acted out
after visits, and David's school work and behavior had deteriorated.  Subsequently, the social worker said that
after suspension of visitation, the boys' teachers and foster parents reported
significant positive changes in the children.

            The
psychiatrist who performed a psychiatric assessment of Michael diagnosed him
with bipolar affective disorder and pedophilia, nonexclusive type, and said
although Michael's most glaring behavior had occurred during amphetamine
intoxication, he also apparently engaged in inappropriate behavior of a sexual
nature when sober.

            At the
jurisdictional hearing on the section 342 petitions in March 2013, after
considering the documentary evidence and testimony by the social worker, the
CASA, Dr. Clipson and E.R., the court denied Michael's request to strike
allegations from the supplemental petitions regarding actual sexual abuse.  It found the allegations of the petitions to
be true.  It specifically found E.R. had
oral sex with Hector in Michael's presence, and Michael watched the activity
for his own gratification, and, after being instructed not to do so, Michael
slept in the same bed with the children and showered them, and there was a
sexual component to these activities.  It
found Michael did not protect E.R. from Hector and there is a substantial risk
of future abuse.  It further found
Michael is a pedophile. 

            At the
dispositional hearing on April 16, 2013, the court continued the children as
dependents of the court.  It found
further reunification services would
not be provided under section 361.5, subdivision (b)(6) (severe sexual abuse)
and referred the matter for a section 366.26 hearing.

            Michael
petitioned for review of the court's orders. 
(§ 366.26, subd. (l);
Cal. Rules of Court, rule 8.452.)  This
court issued an order to show cause, the Agency responded and the parties
waived oral argument.

DISCUSSION

            Michael
contends the doctrine of collateral
estoppel precluded the Department from relying on allegations that he
subjected E.R. to sexual abuse as the factual basis for the subsequent section
342 petitions.  He argues the sexual
abuse allegations were litigated at the July 19, 2011 jurisdictional hearing
and must be stricken from the petitions.

A.  Legal Principles

            Under
California law, the collateral estoppel
doctrine bars relitigation of an issue decided in a previous proceeding when
three elements are established: 
"(1) the issue necessarily decided in the previous suit is identical
to the issue sought to be relitigated; (2) there was a final judgment on the
merits of the previous suit; and (3) the party against whom the plea is
asserted was a party, or in privity with a party, to the previous suit."  (Producers Dairy Delivery Co. v. Sentry
Ins. Co. (1986) 41 Cal.3d 903, 910; see Lucido v. Superior Court (1990)
51 Cal.3d 335, 341; In re Joshua J. (1995) 39 Cal.App.4th 984, 993 (>Joshua J.).)  The doctrine "is grounded on the premise
that 'once an issue has been resolved in a prior proceeding, there is no
further factfinding function to be performed.' "  (Murray v. Alaska Airlines, Inc.
(2010) 50 Cal.4th 860, 864.)

            Collateral estoppel " ' "is
not an inflexible, universally applicable principle; policy considerations may
limit its use where the . . . underpinnings of the doctrine
are outweighed by other factors." ' 
[Citations.]"  (Vandenberg
v. Superior Court (1999) 21 Cal.4th 815, 829.)

            Because
children may at first be reluctant to talk about abuse they have endured,
application of the doctrine of collateral estoppel in juvenile dependency cases
involving child sexual abuse may be particularly inappropriate.  As the reviewing court stated in >In re Jessica C. (2001) 93 Cal.App.4th
1027, 1039-1040 (Jessica C.),

"Because victims of child molestation may not make
complete disclosures of the extent of abuse initially, it would be too broad an
application of collateral estoppel to hold that further disclosures could not
be the subject of some sort of jurisdictional hearing.  To do so would be to penalize children who
are too shy or reticent to disclose the full extent of their sexual abuse prior
to the initial dependency petition.  In
effect, the damage done to the victim would be compounded by a wrong perpetrated
by the molester- -the invariable warning to the child not to tell."

 

B.  Application

            The court
did not err by considering new evidence of the sexual abuse of E.R. in the
subsequent petition.  Before the hearings
on the original petitions, the children had not disclosed being sexually
abused.  But subsequently, extensive new
evidence was brought forward after the children had been away from Michael for
a time and began to talk to the CASA, their therapist and the social worker
about what had been going on in the home.

            Here, as in
Jessica C., the children disclosed
much more during the dependency period than they had revealed before the
jurisdiction hearing on the original petitions. 
Both boys told of how Hector had abused E.R. and that Michael had been present
during the molestation and observed the activity.  E.R. drew a picture of how he had been abused
while Michael watched, and E.R. wrote about it for his therapist.  David said E.R. told him of the molestation
he had endured when Michael took him into a separate room with Hector.  E.R. testified at the hearing on the section
342 petition that the events he had depicted in the drawing actually had
occurred and that Michael was present during the molestation.

            The issues
decided at the jurisdictional hearing on the original petitions and the
jurisdictional hearing on the subsequent petitions were not identical.  The subsequent disclosures were not mere
reiterations of what was alleged in the original petitions, but, along with
evidence of Michael sleeping with the boys and washing them in the shower
during overnight visits, constituted new evidence of abuse other than what had
been previously litigated.  The original
petition involved the risk to the children from Michael's drug use, pornography
in the home and Michael's writings of sexual fantasies in his journal.  Evidence was not presented at the earlier
hearing that David or E.R. had reported inappropriate touching or that Michael
had acted out the fantasies in his journal. 
The court did not err by determining that the principle of collateral
estoppel did not preclude litigation of the issue of actual sexual abuse
alleged in the subsequent petitions.

            Michael's
reliance on Joshua J. is
misplaced.  In that case, the father had
admitted molesting his son, Justin, in 1987. 
Several years later, the social services agency petitioned on behalf of
a younger sibling, Joshua, based on the conduct alleged in the earlier
petition.  The court held the father
could not relitigate the issue of his abuse of Justin because the issue had
been decided in the earlier hearing.  (>Joshua J., supra, 39 Cal.App.4th at p.
993.)  Here, the issues of the original
and subsequent petitions were not the same. 
The issues of actual sexual abuse and whether Michael had been present during
the abuse were not litigated at the earlier hearing.  The holding of Joshua J. does not aid Michael's position.

            In
addition, by the time of the hearing on the subsequent petitions, the children
had been out of Michael's care for more than two years.  The time for him to receive reunification
services had run out, and the court could not have concluded he should receive
additional services under section 366.21, subdivision (g)(1), because he was
not, as required by that statutory provision, having consistent visits, and he
had not made significant progress or shown he could complete the objectives of
his case plan or provide for the children's safety and protection.  Michael's visits had been suspended and the
visitation facility refused to continue to supervise visits.  The children's therapist reported Michael was
coaching them about what to say. 
Michael's therapist was in the process of terminating therapy because
Michael was no longer making progress, but blamed others for his problems and refused
to take responsibility.  The court could
not find he should receive additional services.

            The court
did not err by denying Michael's request to exclude the issues of actual sexual
abuse in the subsequent petitions under principles of collateral estoppel.  Michael has not shown error by the court
terminating his reunification services
and referring the matter to a section 366.26 hearing.

DISPOSITION

            The
petition is denied.  The request for stay
is denied.

 

                                                           

NARES, J.

 

WE CONCUR:

 

 

                                                           

BENKE, Acting P. J.

 

 

                                                           

McINTYRE, J.