Filed 11/14/18 In re I.R. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.

Nicole Williams for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

I.R., the minor, was removed from her parents’ custody after she disclosed her father had touched her inappropriately. The parents pled no contest to allegations of sexual abuse and failure to protect and were given reunification services. At the twelve-month review hearing, custody was returned to the mother on a plan of Family Maintenance, but father’s visits, although liberalized, remained supervised. Subsequently, the San Bernardino County Children and Family Services (CFS) agency submitted an approval packet seeking to dismiss the dependency. Father objected to dismissal, preferring to wait until the regular review hearing in order to present expert testimony that it was unlikely he ever molested his daughter. The court considered the expert’s preliminary report but denied a continuance. After considering the expert’s evaluation and hearing father’s testimony, the court dismissed the dependency case with exit orders to family court with liberalized visitation for father. Father appealed.

On appeal, father challenges the trial court’s denial of a continuance. We affirm.

Background

On May 27, 2016, CFS received a referral alleging sexual abuse of I.R. by her father, when I.R. disclosed inappropriate touching to her treating physician during a routine examination for possible urinary tract infection. Mother denied knowledge of any abuse and did not believe the allegations to be true because father worked long hours and was rarely alone with the child. The physical examination was completely within normal limits, so the doctor could neither confirm nor negate sexual abuse. During an interview with a social worker, the child could not distinguish good from bad touching.

Nevertheless, the minor’s half sibling, S.E., who lived with their maternal grandmother because she felt uncomfortable around her stepfather, confirmed that I.R. had previously made a disclosure that I.R.’s father had touched her pee-pee. S.E. indicated that I.R. had also reported the touching to her mother, but that her mother did not believe the allegations. During a forensic interview, I.R. told the evaluator that her mother told her to deny any bad touching by her father. On July 21, 2016, the children were taken into temporary custody.

A dependency petition was filed on July 27, 2016, alleging that father had sexually molested I.R. and that her mother had failed to protect her, within the meaning of Welfare and Institutions Code[1] section 300, subdivisions (b) and (d). I.R. was detained with her maternal grandmother. Post detention, the social worker recommended that S.E. be placed with her father following a home evaluation.[2] The social worker recommended that I.R. be removed from her parents’ custody and that services be afforded for reunification of the family. The social worker was concerned that father would continue touching the minor and that mother would continue to deny any abuse, resulting in the child developing feelings of guilt and shame.

The jurisdiction report noted that neither parent had a substance abuse or criminal history, but mother had been sexually abused by a cousin as a child, and the paternal grandfather had been accused of molesting father’s sister, resulting in father being removed from his parents’ custody, and subsequently reunified with his father. Father denied any inappropriate touching and blamed the maternal grandmother, who was hypervigilant due to the molestation of mother, for the allegations because the grandmother never liked him.

Prior to the jurisdiction hearing, the social worker submitted additional information to the court that during a supervised visit, I.R. disclosed to father that the maternal grandmother had told her that father was a bad man. Father sought advice on how to handle the situation and was instructed to have the child repeat any similar statements so that they could be documented.

Later, during the same visit, the child made a similar statement that her grandmother told I.R. that her father had touched her and was a bad man, to which father replied by suggesting that I.R. tell the social worker about it. Subsequently the social worker spoke with the minor who reported that maternal grandmother had made the statements about father to I.R. on five occasions. The social worker advised the grandmother, who denied making the statements, about not making disparaging statements about father.

On September 15, 2016, the social worker provided the court with the report of an extended interview of I.R. at the Children’s Assessment Center (CAC). In that report, the evaluator noted that the minor made no disclosures of molestation and did not acknowledge making any earlier reports of disclosures.

At the jurisdiction hearing, held on September 15, 2016, the court received all the reports in evidence and both parents entered nolo contendere (no contest) pleas after waiving their trial rights. The court made true findings on amended allegations of molestation and failure to protect, declared I.R. to be a dependent child within the meaning of section 300, subdivisions (b) and (d), and removed custody of the child from both parents. The court found that N.R., father, was a presumed father and ordered the parents to comply with reunification services.

Father participated in parenting classes and counseling, so the court authorized the social worker to liberalize the parents’ hours of visitation, and to allow unsupervised or overnight or weekend visits by way of an approval packet. At an appearance review conducted on December 14, 2016, the court ordered separate therapists for the mother, father, and child.

The social worker’s report, prepared for the six-month review hearing, noted that the father was working on his plan, had completed his parenting classes and 12 counseling sessions, but indicated that the progress reports did not reflect therapy was addressing sexual abuse allegations, so a new therapist was recommended. At a Children and Family Team (CFT) meeting, father agreed that his cousin could live with the family to insure the safety of I.R. if and when the parents reunited. The minor was still placed with her maternal grandmother, and father’s visits went well.

On March 22, 2017, the date scheduled for the six-month review hearing, the court continued the hearing for father’s new counsel to be present. Father’s counsel requested joint family counseling for himself and the minor, but minor’s counsel objected to such a change without input from minor’s therapist. On April 1, 2017, minor’s therapist reported that conjoint therapy sessions would confuse the minor, and noted the child was unable to distinguish the difference between good and bad behavior; for this reason, the therapist recommended against conjoint sessions.

The contested review hearing was conducted on April 20, 2017, at which time the court continued the dependency, as well as the out of home placement and reunification services. The court found the extent of the parents’ progress was moderate and significant, and granted the request for conjoint counseling for the minor with the father when deemed appropriate.

On July 18, 2017, the social worker provided additional information to the court. This report indicated that after the review hearing, the minor was assigned to a different therapist who reported that the child feels comfortable around her father and is able to distinguish between a good touch and a bad touch. The minor was considered ready for conjoint therapy.

On July 19, 2017, at an appearance review hearing, the court ordered liberalized visits for both parents, and authorized the social worker to liberalize visits further when appropriate. The court also authorized conjoint therapy for the father and the minor. Additionally, the court authorized the social worker to return the child to the custody of the mother by approval packet, when appropriate.

At the hearing, father’s counsel informed the court that the maternal grandmother had made untrue statements regarding father and his compliance with visitation rules. The social worker responded that she had spoken with the child who did not disclose that information, and that the worker had informed the father of what was going on. Counsel also informed the court she was attempting to have a psychological evaluation of father’s propensity for sexual abuse of minors. The court told the social worker to inform it if false information was being given to subvert the reunification process. The court indicated it needed an expert to tell it whether or not father poses any future risk to the child. The court confirmed the future hearing for the twelve-month review.

On September 5, 2017, the social worker submitted a status review report in connection with the twelve-month review hearing, recommending return of custody to the mother under a family maintenance plan, and an additional six months of reunification services for father. This report noted that father was actively participating in therapy and addressing sexual abuse allegations, although he still denied sexually abusing his daughter. It also related that the parents have support systems in place to assist if there is any risk to the child. CFS was concerned that father’s continued denial posed a risk to the child, but observed the minor’s visits with father go well and that return to the mother did not pose a risk to the child.

At the scheduled hearing, the father set the matter for a contested hearing on the status review to address the issue of not liberalizing father’s visits. Counsel also indicated she had given all the reports to the forensic psychiatrist who would do an analysis for the court, and sought a hearing date in October. The court approved the plan of family maintenance for the mother and set the matter as contested for father.

On November 13, 2017, the social worker provided additional information to the court, stating that mother had been in family maintenance, there were no problems, and her therapist believed there was no further need for therapy. The social worker indicated that the mother and child had undergone a forensic interview on October 26, 2017, but there was no further information. On November 14, 2017, the court conducted the continued twelve-month review as to father. That same day, father submitted the preliminary forensic psychiatric report prepared by David Glaser, M.D. Father’s counsel informed the court that the expert wished to speak to the minor’s therapist as well as the family therapist and needed additional time.

The court continued the dependency, with the child continued in mother’s custody under the family maintenance plan. The reunification plan was continued for father because the doctor needed more time; and he was ordered to participate in the plan. The court also continued the previous visitation order, but gave the social worker authority to liberalize visitation as to frequency and duration when deemed appropriate, and determined that unsupervised or overnight or weekend visits with father could be ordered by approval packet when appropriate.

Additionally, the court informed father’s counsel that the visitation issues were “still ripe.” The court granted authority for father’s psychiatrist to speak with the family counselor when mother signed the appropriate release. The court set a semi-annual review hearing for May 14, 2018, however, the court authorized the social worker to dismiss the matter by approval packet.

Because the court returned custody to the mother, it did not conduct a contested review, but instead set a family maintenance review hearing, at which it would consider father’s visitation request. The court reminded father’s counsel that it needed something from the psychiatrist indicating whether father does or does not pose a risk of harm to the child before modifying visitation.

On November 29, 2017, CFS submitted an approval packet for a non-appearance review regarding its recommendation to dismiss the dependency. The information submitted to the court indicated that mother was in compliance with the family maintenance plan, that she had benefitted from therapy and understood the signs of sexual abuse such that she was able to appropriately care for the child. CFS recommended dismissal of the case with a Family Law order.

On December 5, 2017, minor’s counsel objected to the packet and on the following day, father’s counsel filed an objection. Father argued several grounds: (a) it would be error to dismiss prior to a hearing pursuant to section 364; (b) CFS should have been required to file a section 388 petition to request dismissal prior to a hearing under section 364; (c) the parent is entitled to an evidentiary hearing to challenge dismissal of the dependency; and (d) father needed additional time so that the forensic psychologist could interview the therapists.

The matter was calendared for hearing on the objections on January 4, 2018, but mother’s counsel was unavailable, so it was set for the following month. On January 31, 2018, the social worker submitted additional information to the court, indicating mother had been cooperative and respectful in her communications with CFS, compliant with the maintenance plan, and she was not permitting unauthorized contact between father and the minor. The social worker related the family’s therapist’s view that the parents were able to set appropriate boundaries with the child and that there was no need to continue conjoint therapy. The social worker also indicated that the therapist believed unsupervised visits with father were now appropriate. CFS thus recommended dismissal as to the mother with Family Law Orders in place.

On February 6, 2018, the matter came on calendar to dismiss the case based on mother’s successful completion of her case plan with an exit order. Father’s counsel objected to the dismissal of the dependency before the next scheduled review hearing (set for May 14, 2018). The court indicated it had received and reviewed the preliminary forensic report of the psychiatric expert recommending unmonitored visitation, and was willing to consider it in determining whether or not to order unmonitored visitation presently. Father’s counsel wanted the therapist who had conducted the conjoint therapy for the family to testify and was unclear whether the court had advanced the section 364 review hearing.

Counsel acknowledged discussing the nature of the hearing with the clerk on the phone prior to January 4, 2018, but was not prepared to go forward without the therapist and the forensic psychiatrist being present. The court noted that counsel had acknowledged receipt of the social worker’s packet, had filed formal objections, and that the matter was calendared to consider the recommendation in the packet; the court declined to continue the matter further.

Addressing the issue of the recommendation by packet, CFS argued against unmonitored visitation because father had not accepted any responsibility. Minor’s counsel concurred. Father testified that he did not realize he was pleading guilty to the charges, denied that the minor was afraid of him, understood the appropriate boundaries, and wanted to reunify with his family. However, he still denied committing any sexual abuse.

After hearing the testimony, and considering the evidence contained in the report of father’s expert, the court expressed doubt as to whether a molestation had actually occurred. The court proposed unsupervised visits at a neutral location, and if no issues are reported, the court would “step up” visitation to allow unsupervised visits at any location, but the court was not prepared to order overnight or weekend visits. The court then signed the custody order to be filed in Family Court. On April 2, 2018, father appealed the order.[3]

Discussion

Father argues that the juvenile court erred in denying a continuance to allow his counsel to secure the attendance of the family therapist and/or the forensic psychiatrist.[4] Neither party has provided us with the pertinent standard of review. Father focused instead on whether he was deprived of notice and a hearing under section 364 and an opportunity to object to dismissal of the dependency, as well as an opportunity to present new evidence that he did not molest his daughter, to refute the conclusion that unsupervised visits were detrimental due to his refusal to admit the allegations. CFS argues that father failed to show good cause. The continuance was properly denied.

The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. (§ 352, subd. (a); Cal Rules of Court, rule 5.5550(a)(2); In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) “Continuances are discouraged in dependency cases.” (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 779, citing In re Emily D. (2015) 234 Cal.App.4th 438, 448; In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) The court’s denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. (In re Giovanni F., supra, at p. 605; In re Angela R. (1989) 212 Cal. App. 3d 257, 265–266.) “‘To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.’” (In re Elizabeth M., supra, 19 Cal.App.5th at p. 780, quoting In re Joey G. (2012) 206 Cal.App.4th 343, 346.)

Here, counsel’s request to continue was based in part on lack of notice that the court would be dismissing the dependency at the hearing and the fact that a hearing under section 364 had not been conducted. As to the notice issue, the record undermines father’s claim. The approval packet served on the parties on November 29, 2017, as a nonappearance review, demonstrated that CFS intended to dismiss the dependency. Father’s counsel acknowledged receipt of that proposed order packet and timely filed an objection. Notice was provided two months prior to the hearing.

The fact that a section 364 hearing had not been conducted did not warrant a continuation of the dependency. Section 364 establishes procedures for review hearings for children who have been adjudged as dependents, but have not been removed from their parents. When proceeding under section 364, because the child is in placement with a parent, the court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home. (§ 364, subd. (c).) Section 364 also applies to situations in which children were removed from both parents and then returned to only one parent. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.) Under section 364, subdivision (c) and California Rules of Court, rule 5.710(e)(2), if the court determines the child may safely be returned to the parent, it terminates jurisdiction unless the social worker establishes that conditions still exist that require supervision. (§ 364, subd. (c); Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 304.) None of those situations exist here.

Because the social worker concluded that conditions no longer exist that require supervision, the court was not required to conduct a section 364 hearing. “The section requires a postdisposition review hearing only when the court has released the child to parental custody and found that continued supervision with family maintenance services is necessary to protect the child from the risk of serious harm.” (In re Destiny D. (2017) 15 Cal.App.5th 197, 206-207.) “If services and ongoing supervision are not needed, section 364, subdivision (a), is not implicated.” (Id., at p. 207.) Thus, section 364 operates solely as a status review hearing to determine whether continued supervision is necessary for the protection of the child. (§ 364, subd. (a).) Here, it was not necessary for the protection of the child.

Father argues that he had an interest in opposing termination of the case in order to provide new information to the court so it could make an informed decision on whether the molestation actually occurred, pointing out that the family wanted to reunify. However, the only relevance of the forensic evidence was to address father’s request for unmonitored visitation, because the allegations were previously adjudicated to judgment at the jurisdiction/disposition phase. Father relies extensively on the case of Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738. But in that case, the “exonerating” evidence was not considered to challenge the basis for jurisdiction. Instead, the new evidence was considered in reviewing the finding of detriment, grounded on the parents’ failure to “internalize” the lessons learned in parenting classes due to the father’s denial he molested the child.

Blanca P. does not hold that jurisdictional findings may be vacated at a review hearing based upon a forensic evaluation casting doubt on the original judgment, without invoking the proper procedure. For this reason, any discussion of whether or not the jurisdictional findings were res judicata, or not, is a proverbial red herring.

Father’s counsel was notified timely of CFS’s intent to seek dismissal of the dependency and filed his objection timely. The hearing on the objection to dismissal was originally set for January 2018, but was continued for another month. Counsel had ample notice and had nearly two months from the time she received the approval packet to obtain a final report from the forensic psychiatrist, and secure the attendance of the family conjoint therapist for the hearing. Counsel did not make any offer of proof that either of them would provide additional information not contained in the reports, which the court considered. There was no good cause for the delay.

In any event, father cannot show prejudice from the denial of the continuance. The family’s conjoint therapist recommended unsupervised visits for father in a progress report filed on January 31, 2018, which the court considered. The court also considered the forensic report submitted by father, and heard father’s testimony. The court therefore considered all relevant evidence, pertinent to the issue of father’s visitation, the only issue on the table. The documentary submissions persuaded the court that it was doubtful father had molested his daughter, leading to liberalized visitation, in a “step up” process, leading to unsupervised visitation. This was counsel’s expressed goal, and it was achieved without the further delay that a continuance would involve.

There was no abuse of discretion in denying the continuance.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

FIELDS

J.

RAPHAEL

J.