Filed 7/11/17 In re F.N. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re F.N. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

S.N.,

Defendant and Appellant.


E066696

(Super.Ct.No. SWJ1400540)

OPINION


APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed.
Law Offices of Vincent W. Davis & Associates and Stephanie M. Davis for Defendant and Appellant.
Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant S.N. (father) appeals from the juvenile court’s order denying his motion to remove the social worker for bias, denying his Welfare and Institutions Code section 388 petition requesting that K.P. (mother) provide the passports of F.N. and H.N. (the children) to the Riverside County Department of Public Social Services (the Department) and restrain mother from leaving the country, and denying his request for a stay of the order allowing mother to travel with the children out of the country. Rejecting father’s contentions, we affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On June 27, 2014, the Department initiated this dependency action as to F.N. (age seven years) and H.N. (age four years), alleging the children suffered, or there was a substantial risk they would suffer, serious physical harm due to father’s unresolved anger issues, acts of domestic violence against mother, and excessive use of discipline with the children. (§ 300, subd. (b).) The Department reported that mother had obtained a temporary restraining order (TRO) on June 16, 2014, following a domestic violence incident resulting in one of the daughters calling the police. Other family members had previously filed for TROs against father. The parents were born in Afghanistan, and their marriage was arranged. Mother claimed that father had always been physically and sexually abusive towards her, and physically abusive towards the children. Mother wanted father to move out of the home and get help; however, she did not want him arrested. The social worker interviewed the children, who confirmed mother’s claims of abuse and stated they were scared of father. Father denied physically assaulting mother and physically disciplining the children.
On June 30, 2014, the trial court found a prima facie showing was made that the children came within section 300, subdivision (b). The children were detained from father but remained in mother’s custody. The court issued a TRO protecting the mother and children, and set a jurisdiction hearing.
The jurisdiction report was filed on July 22, 2014. On July 25, 2014, the court sustained the allegations in the amended petition, adjudged the children to be dependents of the court, ordered family maintenance services for mother, and ordered family reunification services for father. On August 28, 2014, the court issued a permanent restraining order for one year to protect mother and the children from father. The order provided for supervised visitation twice per week.
The six-month status review report was filed on January 13, 2015. Mother informed the social worker that she had “constant anxiety and some depression.” It was difficult for her to live independently from father because she had no support group; she felt isolated and alone. She appeared “very scared, unsure, and not empowered to keep herself and her children safe.” It was hard for her to participate in services because she was running a business. In contrast, father resided with his parents and brother. He was “semi-employed through ‘Lyft’” (similar to a taxi service) and wanted to reunite with mother and the children. Father was in compliance with his case plan and his visits were consistent and appropriate. On January 26, 2015, the juvenile court continued services to both parents and authorized conjoint therapy. The court further approved extended, unsupervised visitation with father. On February 17, 2015, the court recalled the restraining order.
According to the status review report filed on July 10, 2015, the Department recommended termination of reunification services for father, supervised visitation, and psychological evaluations for both parents. Mother was getting used to living independently; however, father stated that he did not want to live with anyone other than mother and the children. The parents were attending conjoint therapy. H.N. suffered hair loss attributed to stress; she was in therapy to deal with anxiety. F.N. presented as a happy and talkative child, although at times she appeared to be guarded. The parents argued about business-related issues. Father violated the visitation directive on two occasions. On May 18, 2015, the Department received an anonymous letter that accused mother of being deceitful and threatening to kill father and the girls, and raised concerns about monetary and business issues. The social worker contacted father and advised him to call the police and make a report if the children were in danger. Father retracted his concern for the children’s safety and stated that what he wrote in the letter was not true. The social worker advised father that visits would again be supervised. Father later stated that he did not send the letter and knew nothing about it; however, this contradicted his prior statements. It was later discovered that father’s sister had delivered the letter to the Department, but signed father’s name.
On June 22, 2015, father contacted the social worker, stating that he would not return to conjoint therapy. He claimed that the therapist took sides with mother, believing her over him. Father was very angry. That same day, mother contacted the social worker because father told her that the Department would take the children from her custody because she had lied. After advising mother that father’s statement was not true, the social worker expressed concern about the constant back-and-forth relationship and lies between the parents.
Since father’s visitation returned to being supervised on May 18, 2015, father had visited with the children only one time. During that visit, he hardly interacted with them, appearing to be bored. Father would briefly see the children at conjoint therapy. Father claimed that he had a hard time attending visits because he was “fasting for Ramadan, a religious month long holiday.” On July 24, 2015, the juvenile court continued services for both parents.
On October 8, 2015, father called the social worker and asked her to tell mother to give her van to father. The social worker informed father that she could not intervene in any business or personal issues not concerning the children. That same day, father and his sister went to mother’s salon and began going through her papers. Father appeared angry and confrontational, threatening mother. Father said he was the owner of the salon and he wanted the keys. Father’s sister tried to steal mother’s purse. The police were called. Video evidence from the store supported mother’s reporting of the incident. H.N. was present and appeared visibly traumatized. She was reluctant to talk about the incident with the social worker; however, H.N. stated that she did not want to visit with father. Mother informed the social worker that on September 11, 2015, father and his sister filed a name change for the business; father fraudulently added his name to the business lease; and he had mother’s cell and business phones blocked so that she was unable to receive any business calls. No charges were filed against father; however, his sister was arrested.
On November 12, 2015, the Department filed an ex parte application requesting a restraining order against father and his sister to protect mother and the children. Father was harassing mother, telling her the FBI would be coming for her and that he would take the business from her. Father followed mother to the business, where he yelled at her, using profanity. A security guard who witnessed father’s actions advised mother to call the police. Father filed for divorce but told his daughter that there was no divorce. During visitation with his children, father was overly affectionate towards the older child, making her uncomfortable. On November 13, 2015, the court issued a TRO against father and his sister.
In the status review report filed on December 8, 2015, the Department recommended terminating services to father, monthly supervised visitation, and a permanent restraining order against father and his sister. Father would not respond to the social worker’s attempts to contact him, stating that all contact must go through his attorney. According to a psychological evaluation, father accepted no responsibility for any issue raised by mother and the children regarding his conduct, indicating a “‘maximum degree of denial.’” The social worker opined that father did not benefit from services and continued to deny responsibility for removal of the children from his care. He exhibited erratic behavior and harassed mother.
On December 21, 2015, the juvenile court terminated father’s services and reduced visitation to twice a month. At the request of mother’s counsel, the court ordered father to provide or turn over mother’s and the children’s passports to the Department if he came into possession of them or knew their location. According to mother, the passports were taken from her business. The court issued a three-year restraining order against father and his sister.
On May 12, 2016, father filed a section 388 petition requesting that mother provide the children’s passports to the Department. He also requested that mother be restrained from leaving the seven southern California counties. Father alleged that mother was a flight risk because she had applied for passports for the children on January 28, 2016, and indicated a travel date of March 10, 2016, with no return date. Father accused mother of lying to the court regarding his possession of the children’s passports.
In the status review report filed on June 1, 2016, the Department recommended termination of the dependency upon the filing of family law orders granting sole legal and physical custody of the children to mother. The Department also recommended that any visitation with father be supervised, that the children’s passports be returned to mother, and that mother be authorized to travel to London, England, to visit family during the summer and school vacations. The Department requested that father’s section 388 petition be denied. The social worker had no information as to father’s circumstances because he refused to speak with her, directing her to speak with his attorney. Father’s visits with the children were described as being “inappropriate and confrontational.” Father was upset that the children were given Christmas gifts from a local church, stating that the presents should have been “given to ‘people under a bridge because we are not beggars.’” Father was asked to refrain from speaking about the gifts during the visit, but he refused. In another visit, father spoke Dari, his native language, despite being asked to speak English because the visit was supervised. The children were visibly shaken by father’s action. The Department offered to provide an interpreter for future visits. Because father refused to speak English, the visit was terminated. Father blocked the exit, prolonged the children’s departure, and whispered in their ears as they left. The children were scared by father’s behavior because it reminded them of the “reasons for their removal.”
Regarding the children’s passports, mother acknowledged that the children had not had passports prior to January 2016, but she maintained that father had taken her passport. Mother was able to obtain passports for the children without father’s permission because of the restraining order. The Department did not believe that mother was a flight risk.
On June 21, 2016, father filed a motion to remove the social worker, Ms. Vasquez, for bias; alternatively, he asked that the court strike her reports due to bias. In his declaration, father stated that a prior social worker had falsely reported that father was convicted of domestic violence on April 28, 2014, in Illinois. As for Ms. Vasquez, father claimed that: (1) she refused his repeated requests to correct the false domestic violence report, prompting him to file a complaint against the Department; (2) she falsely reported that he fraudulently filed a name change on mother’s business license; (3) she falsely accused him of blocking mother’s cell phone service, causing her to lose business; (4) she reported that he withdrew $500 from mother’s bank account, even though he had no ability to withdraw any money from that account; (5) she wrongfully alleged that he violated the restraining order because he had information that the children’s passports were delivered; (6) she made inappropriate comments about his culture and religion; and (7) she was rude, condescending, and arrogant in speaking with him.
In response to father’s claims, the Department agreed that father had not been convicted of domestic violence in 2014; however, the conviction was not a factor that was considered in the dependency action. The Department noted that until August 2015, father was actively engaged and participating in his case plan. However, in June 2015, father expressed that he was depressed and did not know if he wanted to “be here anymore.” Ms. Vasquez immediately referred father to additional counseling services. In August 2015, the conjoint therapist reported her concern that father was not taking responsibility for his actions. As father maintained more contact with his sister and other family members, he began exhibiting erratic and concerning behaviors. According to a psychological evaluation, father “‘accepts no responsibility for any issues raised by his wife or children regarding his conduct.’” By November 2015, the juvenile court granted a TRO protecting mother and the children from father and his sister, and in December 2015, the TRO became permanent for three years. From December 2015 on, father refused to communicate with Ms. Vasquez. The Department recommended that the restraining orders against father and his sister remain in effect.
Hearings on father’s various motions were held on July 19, 20, and 21, 2016. It was stipulated that testimony for one motion may be used for any other motion. It was further stipulated that father’s declaration in support of his moving papers filed on June 21, 2016, would be offered as his testimony. Ms. Vasquez testified that she did not speak with father or his sister about the incident at mother’s salon. She did not speak to father because he would not speak with her. She obtained her information about the incident from mother and H.N. and viewing the video. She testified that she was mistaken about father’s possession of the children’s passports; however, she was not concerned that mother was a flight risk. Ms. Vasquez had spoken with mother, who stated she wanted to remain residing in California, but she also wanted to visit her family in London. Ms. Vasquez stated that she was not responsible for any report that represented father had been convicted of domestic violence in Illinois, and she corrected the misrepresentation in an addendum report. Ms. Vasquez obtained mother’s permission to give the children Christmas gifts. She denied saying to father, “‘You believe it’s okay, based upon your culture and religion, to mistreat women.’” She further denied that he had confronted her about this statement. She testified that the Department made religious accommodations for him. Ms. Vasquez was unaware of who owned the business that mother claimed was hers.
Father’s sister testified that she went to the salon with father to obtain keys to the car she had just purchased from father. She claimed that mother had invited them to come to the salon, but then she initiated physical contact. The sister denied assaulting mother. She testified that she wanted to join the United States Air Force, and the restraining order against her was affecting her military career. According to the sister, father wrote the letter that she delivered to the Department in May 2015. She claimed that Ms. Vasquez would yell and scream at father, telling him he was going to lose his children. She claimed that Ms. Vasquez insulted the family’s culture and religion.
The children provided stipulated testimony that their visits with father had improved since there was an interpreter present.
Following argument of counsel, the juvenile court ruled as follows: It found father’s stipulated testimony was not credible, but was “false, misleading, and untrue.” Likewise, it found father’s sister’s testimony to be not credible. In contrast, the court found Ms. Vasquez’s testimony to be “very credible, very compelling, very logical, very consistent, [and] very clear in terms of what she asserted and how she responded to the questions.” The court did not find her to be culturally biased against father, given the fact that mother and the children were of the same background and that she reported positive things about father, and admitted to mistakes or errors in the reports. The court found no bias on Ms. Vasquez’s part and denied father’s motion to have her removed. It also denied father’s section 388 petition to require mother to surrender the children’s passports and not allow her to leave the country. The court found no change in circumstances and no benefit to the children. The court authorized mother to travel to London to visit her family during the summer and school vacations. Father’s attorney objected, asking for a stay under Code of Civil Procedure section 917. The court denied the request, and counsel replied, “You can’t deny it. It’s by operation of law. I have a right to seven days on that order.” Finally, the court granted mother sole physical and legal custody of the children, ordered supervised visitation with father twice per month, returned the children’s passports to mother, and ordered the dependency terminated upon the filing of the family law orders. The permanent restraining orders remained in full force and effect.
II. DISCUSSION
Father challenges the juvenile court’s order contending that: (1) the court erred in denying his motion to remove the social worker for bias; (2) the court abused its discretion in denying his section 388 petition; and (3) the court erred in denying his request for a stay of its order allowing mother and the children to travel out of the country.
A. Father’s Motion to Remove the Social Worker for Bias Was Properly Denied.
Father asserts that the juvenile court abused its discretion in denying his motion to have the social worker, Ms. Vasquez, removed for bias. Section 16513.5 expressly provides authority for removal of a social worker in a dependency proceeding: “Any party to a dependency proceeding may bring a motion before the juvenile court to have a social worker removed from the case. The juvenile court judge in the dependency proceeding shall grant the motion if a preponderance of evidence shows that a conflict of interest has occurred that would interfere with the social worker’s ability to objectively carry out his or her duties, which may include, but is not limited to, any of the following: [¶] (a) The social worker has had sexual contact . . . with any party to the dependency proceedings. [¶] (b) The social worker has a relationship with an individual who is adopting or attempting to adopt a child who is the subject of the pending dependency proceeding, and the relationship is of such a nature that a conflict of interest or bias may exist on the part of the social worker which may compromise his or her objectivity. [¶] (c) The social worker has been convicted of perjury with regard to the dependency proceeding before the court.” (§ 16513.5, italics added.) The juvenile court had the authority to remove Ms. Vasquez. However, after consideration of father’s recusal motion, it concluded there was no conflict of interest due to bias within the meaning of section 16513.5, and hence that recusal was not necessary. We find no abuse of discretion.
Section 16513.5 states that a ground for finding a conflict of interest requiring removal “may include, but is not limited to,” three specified circumstances—sexual contact with a party, a relationship with someone seeking to adopt the dependent child, and perjury in connection with the case. The conflicts of interest enumerated in the statute involve a social worker’s own personal interest in or misconduct with regard to a dependency case. Under the doctrine of ejusdem generis, we presume the Legislature intended the statute to apply to other situations of a similar nature. (See Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141.) This narrow reading of the removal statute is consistent with the doctrine of separation of powers, under which the juvenile court cannot improperly invade the executive functions of the county’s social services agency. (See In re Ashley M. (2003) 114 Cal.App.4th 1, 6.)
The claimed conflict of interest in this case is neither one of the circumstances specified in the statute, nor a situation of a similar nature. There is no claim that Ms. Vasquez’s relationships with mother, father, or any other party involved a personal interest. The facts set out in the recusal motion were that Ms. Vasquez refused to correct the false domestic violence report; falsely reported that father fraudulently filed a name change on mother’s business license; falsely accused him of blocking mother’s cell phone service; falsely accused him of taking money from mother’s bank account; falsely alleged that he violated the restraining order; made inappropriate comments about his culture and religion; and was rude, condescending, and arrogant when speaking with him. Father claimed that Ms. Vasquez could not be fair and objective in dealing with him because of these “repeated instances of overlooking evidence favorable to [him], and presenting evidence adverse to [him] from sources who were previously found not credible by the family law courts, Family Law Judges, Police Officers, [and] Material Witnesses . . . .” (Boldface, underline and italics omitted.) Thus, father argued that because of Ms. Vasquez’s bias towards him, she has a conflict of interest.
The juvenile court found father’s testimony was “just false, misleading, and untrue.” In contrast, it found Ms. Vasquez’s testimony was “very credible, very compelling, very logical, very consistent, [and] very clear in terms of what she asserted and how she responded to the questions.” We do not pass on the credibility of witnesses or attempt to resolve evidentiary conflicts. (In re Marcos S. (1977) 73 Cal.App.3d 768, 781.) “It is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence.” (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) According to the evidence, Ms. Vasquez answered each of father’s claims of bias with an impartial explanation. If there were mistakes in the Department’s reports, she corrected them in an addendum. If there was something positive to say about father, she did so in her reports. Ms. Vasquez did not refuse to talk to father in order to enable her to incorporate his account of any of mother’s claims. Rather, father refused to talk to Ms. Vasquez. In short, there is no evidence that Ms. Vasquez’s ability to objectively carry out her duties was impaired by any bias against father. As a matter of public policy and under the doctrine of separation of powers, unless there is an actual conflict of interest, designation of the social worker to perform the tasks of the social services agency must be left to the discretion and expertise of the agency. (In re Ashley M., supra, 114 Cal.App.4th at p. 10.) The juvenile court did not err in denying father’s motion to remove the social worker.
B. Father’s Section 388 Petition Was Properly Denied.
Father contends the juvenile court abused its discretion when it denied his section 388 petition requesting that mother provide the children’s passports to the Department and that she be restrained from leaving the country. We disagree.
Under section 388, a parent may petition a juvenile court to modify a previous order on the grounds of changed circumstances. (§ 388; In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) The petitioner has the burden to show, by a preponderance of the evidence, a change of circumstances, and to show that the proposed modification is in the child’s best interests. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228; Cal. Rules of Court, rule 5.570(h)(1).) “We review the grant or denial of a petition for modification under section 388 for an abuse of discretion. [Citations.]” (In re B.D., supra, at p. 1228.)
Father contends the juvenile court erred in finding that he failed to demonstrate a change of circumstances. He asserts that he presented the court with evidence which revealed that: (1) mother lacked credibility; (2) mother lied to the court about the incident at her salon and father taking the children’s passports in order to justify a restraining order; (3) mother used these lies/restraining order to obtain the children’s passports without father’s permission; and (4) mother intended to take the children on a “one-way trip to London.” Given this evidence, father argues that the requested modification was “clearly” in the children’s best interest because they were “at risk of losing their relationship with their father.”
The juvenile court found no evidence demonstrating the need to forbid mother from traveling or to require her to surrender the passports. Further, it found no benefit to the children if father’s request was granted. According to the evidence, mother was not a flight risk; she cooperated with the social worker, allowing access to the children; she told the social worker that she intended to remain residing in California and only visit London during vacation time; and she and the children were in need of some family support. This evidence shows that mother was not a flight risk, and that it was not in the best interests of the children to grant father’s section 388 petition.
Because father fails to demonstrate that the juvenile court order denying his petition constituted an abuse of discretion, we will not disturb it.
C. The Error in Denying Father’s Request for a Stay Is Harmless.
Relying on Code of Civil Procedure section 917.7, father contends the juvenile court erred in denying his request for a stay of its order allowing mother and the children to travel out of the country during the summer and school holidays. “[I]n the absence of a writ or order of a reviewing court providing otherwise, the provisions of the judgment or order allowing, or eliminating restrictions against, removal of the minor child from the state are stayed by operation of law for a period of seven calendar days from the entry of the judgment or order by a juvenile court in a dependency hearing . . . .” (Code Civ. Proc., § 917.7, italics added.) We agree that the court erred by refusing to recognize the mandatory automatic seven-calendar-day stay afforded by Code of Civil Procedure section 917.7. However, we find the error to be harmless. Although father contends that his due process rights were violated, he fails to show prejudice. (In re Andrew S. (1994) 27 Cal.App.4th 541, 549.) He did not timely file an extraordinary writ challenging the denial of the automatic stay, and he has not succeeded in overturning the court order allowing mother to travel with the children out of the country.
III. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RAMIREZ
P. J.
We concur:

MCKINSTER
J.

FIELDS
J.