Phillip S. v. Superior Court
Filed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF
SECOND APPELLATE DISTRICT
DIVISION SIX
PHILLIP S., Petitioner, v. VENTURA Respondent; VENTURA COUNTY HUMAN SERVICES AGENCY, Real Party in Interest. | 2d Juv. No. B194518 (Super. ( |
Phillip S. seeks extraordinary writ review of an order of the juvenile court bypassing reunification services and setting the matter for a hearing terminating parental rights of Felicia S. (Welf. & Inst. Code, §§ 361.5, subd. (b)(6); 366.26; Cal. Rules of Court, former rule 38.1, now rule 8.452.) He challenges the sufficiency of the evidence to support the juvenile court's findings that 1) he had sexually abused Felicia's half-brother, Charlie; and 2) it would not benefit Felicia to pursue reunification services. Father requests that we vacate the order setting the 366.26 hearing and remand the matter for a hearing so he may offer the testimony of a rebuttal witness. We deny his petition.
FACTS
Felicia S. is the 16-month old daughter of Deanna L. (mother) and Phillip S. (father). Father allegedly molested Felicia's 5-year-old half-brother, Charlie H. In April 2006, Felicia and Charlie were removed from the home. Ventura County Human Services Agency (HSA) filed a dependency petition on behalf of Felicia for the parents' failure to protect Felicia and for father's molestation of Charlie. (Welf. & Inst. Code, § 300, subds. (b) & (j).)[1]
It was alleged that mother was aware that her son had been molested by father, yet continued to live with him and had not provided a safety plan for Charlie. Mother had a history of substance abuse, which periodically rendered her unable to appropriately care for Felicia. It was also alleged that mother and father had a history of domestic violence. Although the writ petition concerns only Felicia, the juvenile court relied on Charlie's allegations of sexual abuse to bypass reunification services for Felicia.
The sexual abuse came to light when Charlie reported that, on several occasions, father fondled Charlie's penis and inserted his finger into the child's anus. Felicia and Charlie were taken into protective custody and placed at Casa Pacifica. After the children were removed from the home, mother told the social worker, Donna LaCagnina, that father had inserted his finger in Charlie's anus and " ejaculated [his] penis." She said father was very controlling and had previously broken her nose and back.
Father told LaCagnina that mother had a substance abuse problem and had coached Charlie to make the sexual abuse allegations because she " was on drugs." Father denied domestic violence, saying that mother became paranoid and aggressive when she was " coming off drugs." He admitted " accidentally" breaking mother's nose when they were in the car and mother had tried to grab the steering wheel. He " backhanded" mother without looking, while the children were in the back seat.
LaCagnina noted that Charlie had given detailed information about the molestations and there was an ongoing police investigation. There was concern, however, that mother may have coached Charlie to make the allegations, given her statements that father was controlling and abusive and she wanted to leave him. Mother had a history of abusing prescription drugs and both parents had been arrested for domestic violence although neither had been convicted.
Jurisdiction and Disposition Report
The jurisdiction and disposition report was prepared for a hearing on
HSA was initially in favor of reunification. It noted that Charlie had been clear and consistent in his statements to law enforcement and social workers. Of concern, however, was the fact that mother originally supported Charlie's statements, but later discounted the abuse. She explained that she was on pain killers which impaired her judgment, and that she provided Charlie with sexual information that he used in reporting the abuse.
Easterling concluded that the parents had minimized the problems in their home. Mother indicated that she and father had " arguments." However, both had been arrested for domestic abuse, and the police had been called to the house more than once. Mother reported that husband broke her nose and her back because he was " irritated" with her drug use. Father reported to law enforcement that Mother was addicted to prescription drugs, had a dealer and also used crystal methamphetamine. Mother denied drug use, claiming she was merely taking prescription medication in excess.
1) Interviews with Charlie
Deputies Alcantar and Sezzi were called to the school following Charlie's allegations of abuse. When they arrived, both parents were in the principal's office and mother was accusing father of sexual abuse. Charlie told deputy Alcantar that father was " molesting" him. Father touched his " weenie and . . . butt and that's molesting." Charlie said father touched Charlie's penis and put his finger in Charlie's butt while they were in the garage. This happened on the green couch in the garage and on the living room couch. His mother was in her room when the abuse occurred.
Detective Randy Watkins interviewed Charlie at the
Charlie said the first molest occurred in the garage on a green chair with two seats. He described the clothes they wore and recounted that father pulled down Charlie's pants, put his right index finger in his butt and touched his " wiener." Both touchings were painful. On the same day, Charlie was laying on the love seat in the living room. Father pulled down Charlie's pants, put his finger on his " wiener" and then in his butt.
The third incident occurred in the bathroom. Charlie described the bathtub as also having a shower. Charlie was in the bathtub while father was taking a shower. Father touched Charlie in the same way and it hurt. On all three occasions mother was in her room. Charlie told his mother about father touching him, but he did not remember when he told her. The conversation occurred in his room.
2) Interviews with Mother
Deputy Alcantar interviewed mother after arriving at Charlie's school. She said that she was giving Charlie a bath when he grabbed his penis and said, " Look what I got." Mother told Charlie to stop and he replied, " But Phillip does it." Charlie said that it " [f]eels good when Phillip does it." Mother asked if father touched him anywhere else and Charlie said father placed his right index finger inside Charlie's butt. Mother asked if it hurt and Charlie said, " It only hurt for a little bit mama." She asked if father had ever placed his mouth on Charlie's penis and Charlie answered, " Yes, Mama."
Mother added that she believed father fondled Charlie in the bathtub and inserted his finger in Charlie's butt while giving him a bath. She also believed father orally copulated Charlie in their garage, although she did not know the specific dates or times of the incidents.
One week later, detective Watkins interviewed mother at the Camarillo police station. Mother told the detective that she needed to correct her original statement made to deputy Alcantar. She said her first conversation with Charlie occurred when they were watching a movie on television in which two people were kissing. It was then that Charlie told her father had touched him. Mother asked Charlie if it happened when he was taking a bath, and Charlie said yes. Several days later she had a second conversation with Charlie. She was bathing him when he put his hand on his penis and told her to look at what he had in his hand. Mother asked if anyone had touched his penis and if Phil was touching him and putting his finger in his butt. Charlie answered yes to all her questions.
Mother immediately contradicted herself, telling detective Watkins that the second conversation with Charlie occurred in his bedroom, not the bathroom. She asked, " Baby, when you said that [father] touched your bottom, did he put his finger in there?" Charlie said yes. Mother asked Charlie if father had touched him " in front too." Charlie responded, " Yes, mom he did." Mother was unsure if Charlie was just going along with her questioning or if the incidents actually occurred.
Mother told detective Watkins that she " over exaggerated" her original statement to deputy Alcantar. She said she had asked Charlie if " anyone had put their mouth down there" (indicating oral copulation) and Charlie had not responded. Mother stated that she hoped that the molestation did not occur and was concerned that by questioning Charlie she had placed these ideas in his head.
Mother explained that the discrepancy between her two statements was because she " overreacted" during the initial interview. She was on prescription medication and had taken too much Darvocet and Vicodin together on the day she was interviewed by Deputy Alcantar. Mother admitted that she and father had both previously been arrested for domestic violence against the other and said that they were planning to get a divorce.
3) Interviews with Father
Deputy Sezzi interviewed father at Charlie's school. Father denied the allegations and said mother's addiction to pain medication and crystal methamphetamine was the cause of their problems. He told the deputy that mother had been arrested for domestic violence and child abuse, having left Charlie in the car while she went shopping and that mother coached Charlie on what to say to the police.
Several days later, detective Watkins interviewed father at the Camarillo Police Station. Father said mother made false allegations because she was under the effect of prescription medications. He denied molesting Charlie and said mother had manipulated Charlie into making the allegations.
Father said mother had previously used crystal methamphetamine, but had not done so since they had been together. She was addicted to prescription medications and obtained them illegally when she was unable to get a doctor to prescribe them. Two to three days before Charlie made the allegations, mother and father were involved in a " domestic incident." Although police responded to their house, mother did not report the molestation.
Addendum Report and eMemorandums
After mother's death, HSA issued an addendum report recommending that reunification services for Felicia be offered to father. It subsequently issued two memoranda recommending that the court bypass reunification services pursuant to section 361.5 subdivision (b)(6).)[2]
Testimony at Contested Hearing
At the jurisdiction and disposition hearing, father's therapist, Linda Rio, testified that she had seen father 12 times over a period of 4 months. The focus of the therapy has been grief and loss, due to the loss of mother and Felicia. Father had asked for services concerning anger management and parenting.
Father has been cooperative with the therapeutic process and very honest with Rio. He has attended every scheduled appointment and is often early. He has adopted her recommendations concerning how to interact with Felicia. Father has displayed sensitivity to Charlie and expressed concern that Charlie should have therapy to deal with the loss of his mother. At Rio's suggestion, father has recorded himself reading stories for Felicia. Rio testified to the potential breach of the " attachment bond" Felicia might suffer if she were to be adopted.
The juvenile court granted a request by the Felicia's counsel that Charlie's testimony be taken in chambers. Father was able to listen to the testimony through a speaker telephone system in the courtroom. Charlie indicated that he was six years old, but the incidents of abuse occurred when he was five. The judge ascertained that Charlie knew the difference between the truth and a lie and understood that it was important to tell the truth. Charlie testified that he was afraid of father who pulled down his pants and touched his " wiener" and stuck his finger in his " booty." Mother told him that this was called " molesting." The court found that Charlie was competent to testify.
Jacquelin Moody is a community worker for the HSA. She has supervised approximately eight visits between father and Felicia over a two-month period. The visits are once weekly and last approximately one hour. Father brings books, music or toys to every visit and interacts with Felicia very well. She does not run to him when she sees him, but she smiles at him, puts her hands out and points to him and says, " daddy." He has always acted appropriately towards Felicia and is affectionate.
HSA social worker Linda Easterling testified that several factors caused the department to reevaluate the sexual abuse allegations and recommend bypassing reunification. Charlie has never digressed from his original statements. He was able to describe each incident of abuse and the room in which it occurred. By contrast, mother initially reported that Charlie had been molested. Once Charlie was removed from the home, mother stated that she had coached Charlie to say he had been abused. Yet, despite mother's alleged influence on Charlie, his story remained the same.
Father has been manipulative and unpredictable. Although he has attended counseling he has not acknowledged any responsibility for Charlie's sexual abuse, and the therapy has instead been directed towards grief counseling. Charlie has been adamant that he does not want to see father. Nevertheless, father has been trying to see Charlie at school, despite the existence of a stay-away order. Easterling testified that Linda Rio (father's therapist) has repeatedly contacted her, requesting that Charlie participate in therapy with father. Easterling explained that this was not possible because a stay-away order was in effect. It was Easterling's opinion that father's behavior demonstrates his insensitivity to Charlie.
Easterling testified that she had initially recommended that father participate in parent education, domestic violence counseling and sexual abuse counseling. He has attended the parenting classes and counseling. Since the beginning of June he actively pursued a number of case plan services. He has attended all his visits with Felicia. However, since father denies the allegations of abuse, Easterling believes it unlikely that he has participated in sexual abuse counseling.
At the close of the hearing father's counsel requested a continuance to present testimony by Linda Rio to rebut Easterling's testimony concerning the content of father's therapy. Counsel indicated he needed to " explore" Easterling's statements that father is insensitive to Charlie, and to demonstrate father's concern for him.
The court consulted its notes and stated that Rio had already testified that father was concerned that Charlie might need therapy and hoped that his caretakers were sensitive to this. The court inquired of father's counsel whether there was anything it had not heard. Counsel responded, " I appreciate the Court's detailed notes, but I think I didn't explore that as deeply as I could given the reliance of Miss Easterling on some of those issues. But I will submit." The court denied father's request for a continuance, concluding that Rio had testified that father had been cooperative in therapy and sensitive to the children's needs.
HSA argued that reunification with Felicia should be bypassed due to the severe sexual abuse of Charlie, and that the court should make a finding that reunification services would not benefit Felicia. Counsel for Felicia argued that placing her with father would place her at risk of sexual abuse for the remainder of her childhood.
Father argued that the court could not bypass reunification based solely on Charlie's statements. He contended that bypassing services would damage Felicia by disrupting the bond that existed between father and daughter. He emphasized that he has sought services, is participating in them and has evinced a sensitivity to the children's needs.
The court noted that, although mother had appeared to recant allegations of abuse, its analysis of her statements showed that mother had embellished on the abuse reported by Charlie, but she never denied that it had occurred. The court also took into account Charlie's demeanor while testifying. It considered mother's drug abuse, the domestic violence in the home and remarked on the evidence that mother and father " drank to excess" on the night before mother died. The court found true the allegations that there had been domestic violence in the home and that father had sexually abused Charlie and sustained the petition. (§ 300, subds. (b) & (j).)
As to disposition, the court found by clear and convincing evidence that sexual abuse occurred and that father was the perpetrator. (§ 361.5, subd. (b)(6).) The court noted that certain relatives had refused to take custody of Felicia due to fear of retaliation by father. The court further noted that father did not protect Felicia from mother's drug abuse or the domestic violence in the home. Father's attempts to contact Charlie at school demonstrated his inability to recognize and address the seriousness of the allegations against him. The court found that it would not benefit Felicia to pursue reunification services with father. It adopted the recommendations of the HSA and set the matter for a section 366.26 hearing, to consider a permanent plan for Felicia.
DISCUSSION
Denial of Continuance
Father claims the juvenile court violated his due process rights by denying his request for a continuance. He claims he should have been permitted to present Rio's testimony to rebut statements made by Easterling concerning his participation in therapy. Father argues that the court relied on evidence indicating " problems with the therapist's directions to [father] and the nature of the therapy, including requests that [Charlie] be brought into the therapeutic process with the father." He contends that the juvenile court's decision was based on incomplete information and a continuance is necessary so he may present additional evidence to the court.
We reject father's argument. Continuances in dependency proceedings are discouraged and may only be granted on a showing of good cause. (§ 352, subd. (a); Cal. Rules of Court, former rule 1422(a)(2), now rule 5.550(a)(2); Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242; In re Emily L. (1989) 212 Cal.App.3d 734, 743.) Section 352 subdivision (a) provides that " no continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give 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." We will reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.)
Father called Rio as his witness and had the opportunity to elicit her testimony concerning the nature of the therapy at that time. He cross-examined Charlie but asked him only four questions. He failed to obtain the testimony he desired and cannot now complain that the juvenile court chose to believe Charlie's statements. (See In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) Moreover, it is clear from the record that Rio had testified that father had been cooperative in therapy and sensitive to the children's needs. Nothing would have been gained by bringing her back for additional testimony. There was no abuse of discretion. Because father was not entitled to a continuance, the court's denial did not deprive him of due process.
Sufficiency of the Evidence
Father challenges the sufficiency of the evidence concerning the finding of jurisdiction and the disposition order bypassing reunification. He acknowledges that " [a]n attack on the sufficiency of the evidence is an uphill struggle, but [he] is virtually required to do so in light of the likely termination of parental rights, and the possibility of a subsequent appeal."
We review a challenge to the sufficiency of the evidence to determine if substantial evidence supports the jurisdictional and dispositional findings of the juvenile court. (In re James C. (2002) 104 Cal.App.4th 470, 479-480; In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.) For a juvenile court to establish jurisdiction, it must find by a preponderance of the evidence that the child who is the subject of the petition falls within the provisions of section 300. (§ 355, subd. (a); In re P.A., supra,144 Cal.App.4th at p. 1344.) The juvenile court sustained the allegations that mother and father had a history of domestic abuse and that father had sexually abused Charlie. Father does not challenge the evidence supporting the domestic violence allegation, but claims there was insufficient evidence to support the finding that he had molested Charlie.
1) Jurisdiction
Father argues that he has consistently denied the sexual abuse allegations and claims that Charlie's statements were not credible because they were influenced by mother, who had a drug problem. Mother initially stated that abuse had occurred, then minimized the abuse, saying she had " coached" Charlie and finally stated that she " hoped" the abuse had not occurred.
Father's claim is without merit. The evidence supporting a finding of jurisdiction was Charlie's statements as reflected in the reports of social workers LaCagnina and Easterling and detective Watkins. Charlie qualified as a witness and testified to the abuse. The court indicated that it considered Charlie's demeanor while testifying in rendering its decision. " While he never, ever broke down, he appeared to be under stress in testifying. And again, was clear in terms of what he stated occurred." Substantial evidence supported the juvenile court's jurisdictional finding that father failed to protect Felicia and that Charlie had been abused, placing Felicia at substantial risk of abuse. (§ 300, subds. (b) & (j).)
2) Disposition
Under section 361.5, subdivision (b)(6) the court may bypass reunification services if it finds by clear and convincing evidence that a child has been declared a dependent of the court as a result of severe sexual abuse to the child's sibling or half-sibling. To deny services, the court must make a factual finding that it would not benefit the child to pursue reunification with the offending parent.
Father claims that there was insufficient evidence to support the juvenile court's disposition order. He argues that the evidence showed that he was regularly engaged in therapy and the visits with Felicia went well. He contends the HSA's reports are conclusory and contain " little evidence specifically directed to the evaluation of the reunification issue."
While the record demonstrates that father was cooperative in therapy and regularly visited Felicia, it also shows that he had sexually abused his stepson; failed to protect the children from mother's drug use and had been violent with mother. There was sufficient evidence to support the dispositional finding that it would not benefit Felicia to pursue reunification with father.
The petition is denied.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.
Tari L. Cody, Judge
______________________________
Richard C. Gilman, under appointment by the Court of Appeal for Petitioner.
No appearance for Respondent.
Noel Kelbaut,
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
[1] Under section 300, any child may be adjudged a dependent of the juvenile court if: " (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm . . . as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . . [¶] . . . [¶] (j) The child's sibling has been abused or neglected as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
[2] " Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half-sibling by a parent or guardian . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian." (§ 361.5, subd. (b)(6).)
