In re J.D.

Filed 3/19/07 In re J.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis E. Wagner, Interim County Counsel, and Phebe W. Chu, Deputy County Counsel, for Plaintiff and Respondent.

Amanda F. Benedict, under appointment by the Court of Appeal, for Minors.

Defendant and appellant Richard D. (father) appeals from the juvenile courts order suspending its previous order of visitation in a therapeutic setting with his sons, J.D. and B.D. (the children). He claims that the court erred in suspending his visitation because the Department of Childrens Services (DCS) never complied with the courts previous visitation order, and because DCS failed to file a Welfare and Institutions Code section 388^[1]petition to request a modification of the previous order. Father further contends that there was insufficient evidence to support the courts finding that visitation was detrimental to the children. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 27, 2005, DCS filed section 300 petitions on behalf of the children. B.D. was 10 years old and J.D. was six years old at the time. The petitions alleged that the children came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support).^[2] Specifically, the petitions alleged that there was a substantial risk that the children would suffer serious physical harm because father

had a history of substance abuse, and because he inappropriately disciplined the children physically. This discipline included slapping the children on the face and spanking them with their pants down, leaving bruises.

A detention hearing was held on January 28, 2005. The court placed the children in the temporary custody of DCS and detained them with their stepmother on the conditions that there be no corporal punishment, that father move out of the house, and that she not allow children to have contact with father. Furthermore, the court ordered visitation to be once per week, supervised by DCS.

Jurisdiction/Disposition Report and Hearing

The social worker prepared a jurisdiction/disposition report recommending that the children be declared dependents of the court and that father be provided with reunification services. The social worker reported that both children told her they were afraid of father. J.D. said that father had slapped him on the face in the past and was always angry and yelling. B.D. said that when he got in trouble, father would take him into his room, pull down his pants, and spank him. B.D. showed the social worker a bruise that resulted from a spanking. Father denied ever using any physical punishment with the children, but did admit that he popped [J.D.] in the mouth because J.D. had a smart alecky mouth. The social worker opined that father had serious problems with anger, dealing with his emotions, and accepting help for himself and his family. The social worker noted that when she attempted to explain the parameters of the visits with the children (i.e., not to be more than 15 minutes late, not to discuss the case with the children, etc.), father became hostile with her and said no one could tell him what he could or could not say to his children.

On February 28, 2005, the social worker filed a section 387 supplemental petition recommending that the children be moved to a foster home, since the stepmother allowed father frequent access to the family home, against the courts order, thereby endangering the children. On March 1, 2005, the court ordered the children detained in confidential foster care.

A contested jurisdiction/disposition hearing was held on March 23, 2005, and March 24, 2005, and father admitted spanking the children with their pants pulled down. He also admitted to using methamphetamine and marijuana for the past 26 years. The court sustained the allegations in the petitions and declared the children dependents of the court. The court also ordered father to participate in a reunification plan and ordered supervised visitation once per week. The boys were initially maintained in the same foster home, but were eventually placed in separate foster homes, due to J.D.s behavior toward B.D.

Six-month Status Review

The social worker filed a six-month status review report recommending that father be provided with six more months of services. As to visitation, the social worker reported that father was visiting the children regularly, and he continually demanded longer, unsupervised visits. The social worker further reported that B.D. had had a problem with enuresis (bedwetting)^[3]most of his life. J.D. reportedly also had a problem with enuresis and encopresis (involuntary defecation).^[4]

A six-month review hearing was held on September 26, 2005. The court continued reunification services for six more months and ordered unsupervised visitation for father, as arranged by DCS.

12-month Status Review

On March 17, 2006, the social worker filed a 12-month status review report, in which she recommended that reunification services be terminated. Father was participating in a substance abuse program, but he was terminated for nonattendance. He was due to begin the program again in March 2006. The social worker reported that father had previously been terminated from programs and that this would be his eighth referral. The social worker further reported that the children were now in the same foster placement and were thriving.

The report stated that father began having unsupervised visits in January 2006. The social worker learned that, at the visit on February 26, 2006, B.D. was wrestling with his half brother and hit him in the eye for no reason. Father made B.D. apologize, but was not satisfied with the apology, so he put B.D. in time out. After that, B.D. said he did not want to visit with father anymore.

In addition, the social worker learned that father was arrested for domestic battery and possession of a controlled substance on January 16, 2006. The charges were dropped due to insufficient evidence. Nonetheless, in light of fathers arrest, his termination from the substance abuse program, J.D.s enuresis that started at the time of the unsupervised visits, and B.D.s hesitancy to continue the visits, the social worker believed it was necessary to revert back to supervised visits.

In an addendum report dated March 27, 2006, the social worker reported that, on March 22, 2006, the children had their first supervised visit with father. Father told B.D. he was angry with him. Since father was visibly upset, the social worker escorted him out of the visiting area in order for him to vent his anger away from the children. After 20 minutes, father returned but then confronted B.D. about the incident that occurred between him and his half brother at the last visit. Father began to blame B.D. for the visits being decreased and said that B.D. was lying and manipulating the county. After that visit, B.D. told the social worker that he no longer wanted to have visits with father.

The 12-month review hearing on March 27, 2006, was set contested by father and continued to April 19, 2006. The court found visitation with father was detrimental to the children and suspended fathers visitation.

The contested hearing was held on April 19 and 20, 2006. The court found that fathers progress in his case plan was insufficient and that there was no substantial likelihood of reunification within the statutory period. Thus, the court terminated reunification services. The court further found that long-term foster care was the most appropriate plan. As to visitation, the court noted that B.D. feared father and did not desire visitation. The court ordered, without prejudice, visitation in a therapeutic setting, and stated that the order could be changed if there was a recommendation by a therapist that such visitation was detrimental. In that case, the court indicated a section 388 petition could be filed.

Nonappearance Review

On May 25, 2006, the social worker filed a nonappearance review packet (the packet) requesting that contact between father and the children be discontinued, even in a therapeutic setting, because the visits were detrimental to the childrens health. The social worker attached two letters to the packet. The first letter was by Diane Moore, the childrens social worker at Arrowhead Foster Family Agency. The second letter was from Judy Rossbach, a therapist who met with the children to assess visitation with father. Moore felt that it was detrimental for the children to have further visits with father, even if trained professionals were there, since he placed them in fear. She stated that contacts with father caused psychological distress that manifested in encopretic and enuretic problems. She particularly noted that [a]s family visits decreased and stability in placement increased, these problems completely diminished. Rossbach similarly opined that any forced contact between the children and father would be detrimental to their emotional health. Rossbach noted that the foster mother reported that J.D.s encopresis stopped for six weeks, but began again as soon as father was granted eight-hour, unsupervised visits. The foster mother also reported that B.D. had episodes of enuresis, and they were always associated with contact with father. Rossbach found it significant that the children suffered so much stress as to cause a physical response. The court signed the nonappearance review order on June 12, 2006.

On July 5, 2006, father filed a motion requesting continuation of visitation in a therapeutic setting, claiming that the social workers review packet was vague and that he never received a copy of it. He also asserted that the court ordered visits on a therapeutic basis, and it never modified the order.

The court held a hearing on fathers motion on July 12, 2006. The court stated that it signed the packet with the intent of suspending visitation for the well-being of the children. The court stated that it was going to confirm its stand, unless defense counsel had evidence to present. Defense counsel stated that the only basis in the packet for the request to discontinue visitation was the childrens desire not to have contact with him. When defense counsel argued that there was no evidence of detriment, the court referred to Moores letter. Defense counsel said he did not have the letter and stated: In light of that, your Honor, what I would request is that possibly we can revisit the issue. If the children change their mind, if they, with time, with therapy, if it comes about as opposed to leaving it as a nonissue and leaving it on the board for, maybe to revisit the issue later on if the issues change. The court agreed to make the order without prejudice, stating that if certain circumstances changed, namely that the therapist felt that visitation would be beneficial, and the children were not so adamant about not having visitation, it would revisit the issue of visitation. The court then confirmed the packet that it signed and ordered visitation, even in a supervised setting, to be suspended without prejudice.

ANALYSIS

The Juvenile Court Properly Suspended Visitation

Father argues that the court erred in suspending visitation because DCS failed to follow the courts orders of providing visitation in a therapeutic setting, and of filing a section 388 petition to modify the order. He further contends that the court erred in terminating his visitation based solely on the childrens statements that they did not want to visit him and on the foster mothers remarks about the childrens encopresis and enuresis. We conclude that the court properly suspended visitation.

A. Father Waived His Claim

Father has waived his claims that DCS failed to comply with the courts order to provide visitation in a therapeutic setting and that DCS did not file a section 388 petition to modify the courts previous visitation order. Although father filed a motion requesting continuation of visitation in a therapeutic setting in response to the court signing the nonappearance review packet, he failed to allege these claims. By failing to raise these issues below, father has waived them on appeal. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) Notwithstanding the waiver, father acquiesced to the courts order suspending visitation. (See B., post.)

B. The Court Properly Ordered Visitation to Be Suspended and Father Acquiesced to the Order

A juvenile courts determination as to whether parental visits are in the best interests of a dependent child may be reversed only upon a clear showing of abuse of discretion. [Citations.] (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.)

Here, the court properly exercised its discretion and suspended visitation. The evidence showed that, contrary to fathers claim, the childrens enuresis and encopresis were directly related to visits with father. Moore noted that, although the children came into placement with enuresis and encopresis, those problems disappeared as the visits with father decreased. However, once father began having eight-hour, unsupervised visits with the children, J.D.s encopresis started again. Similarly, when the childrens previous foster parents allowed father to come to their house to pick up the children, B.D. started having enuresis again. B.D. said his enuresis started again because of the visits with father and because he did not want father to know where he lived. Moore explicitly stated that [c]ontacts have caused psychological distress that manifests in encopretic and enuretic problems.

Moore further noted that she was present at a visit on B.D.s birthday, and father launched into an angry, inappropriate tirade which left [B.D.] devastated and in tears. Ms. Moore felt that there was damage done by the contact. She concluded that it was detrimental for the children to have further visits with father, or for reunification to be considered, because father placed the children in fear by his words and his presence.

Rossbach concurred with Moore. She reported that medical attention has been sought to rule out any medical causes for the childrens encopresis and enuresis; however, there did not appear to be any cause except stress.

Moreover, at the 12-month review hearing, when the court ordered visitation in a therapeutic setting, it stated that the order could be changed if there was a recommendation by a therapist that such visitation was detrimental. Rossbach, the therapist who conducted an assessment regarding visitation in a therapeutic setting, asked the children to rate how they would feel about seeing father on a scale of one to 10, with 10 being the worst. The children both answered, Ten. When asked how they would feel if they saw father with her there with them, J.D. replied, Only if it was with you here. B.D. said he would feel scared because father yelled at him the last time someone was there.

Rossbach considered the childrens comments, along with the fact that the childrens encopretic and enuretic problems occurred directly after visits with father, and concluded that any forced contact between the children and father would be detrimental to their emotional health.

Although DCS did not actually file a section 388 petition to modify the courts previous visitation order, father was not prejudiced. Defense counsel had an opportunity to, and did, oppose the courts new order suspending visitation. He filed a motion to request continuation of visitation in a therapeutic setting. When the court held a hearing on fathers motion, it gave defense counsel a chance to present evidence. Defense counsel did not do so. Instead, defense counsel acquiesced to the courts new order suspending visitation and simply requested that the court leave the issue open, in case the children changed their minds. The court thus agreed to order, without prejudice, that visitation be suspended. The court further agreed to revisit the issue if the circumstances changed.

Therefore, since there was evidence before the court that visitation, even in a therapeutic setting, was detrimental to the children, the court properly suspended visitation. Since the order was made without prejudice, the court may change the order, if circumstances change.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

KING

J.

MILLER

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] With regard to section 300, subdivision (g), the petition alleged that the whereabouts of the childrens mother (mother) was unknown. Mother is not a party to this appeal.

^[3] Websters Third New International Dictionary (1993) at page 759.

^[4] Websters Third New International Dictionary (1993) at page 747.