In re Linsey T.

Filed 8/2/07 In re Linsey T. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn H. Mackel, Referee. Affirmed.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Owen L. Gallagher, Principal Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Margarita S. (Mother) appeals from the dispositional order of the juvenile court denying reunification services as to her two children, Linsey T. and Carlos T., and suspending monitored visits with Linsey. Mother contends that the juvenile court failed to consider relevant evidence in the form of a report by a court-appointed psychologist evaluating Mother and the children, and also contends that the court did not have before it sufficient evidence to suspend visitation with Linsey. Mother is incorrect. We affirm the order.

factual and procedural background

In December 2001, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that Linsey (born in Nov. 1994) had been sexually abused by her father, Carlos T., Sr.,[1]and Mother knew about the abuse. The referral was eventually closed as unfounded. In April 2005, DCFS received a second referral regarding sexual abuse of Linsey by Father, and Mothers knowledge of the abuse. Linsey and her younger brother, Carlos (born in July 1996), were removed from their parents custody and declared dependents of the juvenile court. Linsey later recanted the allegations of sexual abuse, and the children were returned to parental custody.

In late December 2005, Linsey was raped by Father while Mother was away. When Mother returned home, she knocked on Fathers locked bedroom door. After some delay, Father opened the door and Mother saw Linsey lying in the bed. Linsey told Mother what Father had done, and Mother told her to wash up and stay away from Father. Mother said she would file a police report, but she did not. Mother also failed to report the abuse to DCFS, and the juvenile court terminated its jurisdiction over the children in late January 2006.

As a result of the December 2005 rape, Linsey, then 11 years old, became pregnant. In May 2006, Mother contacted Linseys school and asked to have her transferred to a school for pregnant girls. School officials alerted DCFS and the police. Linsey told school officials and the police that Father had raped her, whereupon Mother yelled at Linsey, Why did you tell them? She said Linsey was a liar and a bad child, and denied any knowledge of sexual abuse by Father.

Father signed a written statement acknowledging his wrongdoing and indicating he was sorry for what he did to Linsey.

On May 9, 2006, DCFS filed a section 300 petition as to Linsey and Carlos, and they were removed from parental custody. At the adjudication and disposition hearing, the juvenile court found true the allegations of sexual abuse by Father and denied reunification services as to Father. The court continued the matter as to Mother, and later ordered that the children and Mother undergo an evaluation by a court-appointed psychological examiner. (Evid. Code,  730.)

At the continued adjudication hearing, the court found true the allegations that Mother knew of the sexual abuse of Linsey by Father, repeatedly dismissed the childs disclosures of sexual abuse, and failed to protect her. The matter was continued for a disposition hearing as to Mother.

In August 2006, DCFS submitted for the disposition hearing a progress report from Mothers program, the Child Sexual Abuse Treatment Program (CSAP). The report indicated that Mothers participation was irregular as she attended less than half of the sessions, and her progress insufficient. Mother was in complete denial of the fact that Father repeatedly raped Linsey and impregnated her. The report indicated that Mother represented a risk to Linseys safety if allowed to have unmonitored contact with her. The court continued the matter for a contested disposition hearing. Mother was granted closely monitored visitation with the children in a therapeutic setting.

In September 2006, Linsey gave birth to a baby girl. The child was placed in the foster home along with Linsey and Carlos.

Linsey was receiving therapy at Stuart House, a treatment program for child victims of sexual abuse. In October 2006, her therapist submitted a progress report to DCFS. The therapist indicated that Linsey missed Mother and was afraid she might not be allowed to return to live with her, and appeared very protective of Mother. Linsey had not discussed with the therapist Mothers prior knowledge of the sexual abuse. The therapist further stated: It is of great concern that the mother has been granted monitored visitation with Linsey due to mothers reported repeated failure to protect Linsey, mothers current denial of her previous knowledge of the sexual abuse and reported disbelief that her husband is the father of Linseys baby. Since Linsey began having monitored visits with her mother, she has exhibited oppositional behaviors, irritability and emotional liability. The therapist recommended that Mother participate in individual therapy in order to address her denial of previous knowledge of the sexual abuse and assume responsibility for her failure to protect Linsey. Only after mother has made enough progress in her treatment, mothers therapist should thoroughly assess her readiness to have monitored visits with Linsey. It is unclear at this time if monitored visits with her mother are in Linseys best interest. [] Unless and until mother has undergone substantial therapy and she has been assessed, returning Linsey to her mothers care should not be considered.

The court-appointed examiner, Armando de Armas, did not review any documentation regarding the nature of the allegations and the circumstances involved in the case before conducting his evaluation, although he knew Linsey had been impregnated as a result of Father raping her. He observed that the children had a warm, open, comfortable, and loving relationship with Mother, and were very attached to her, and she to them. Mother told him that she believed her daughters reports of sexual abuse. The psychologist acknowledged that he was at a disadvantage in conducting his evaluation because he had not reviewed the DCFS records. He opined that, assuming that these family members presented background information consistent with that contained in DCFS records, then there is no psychological reason that these children can not be returned to the custody of their mother.

The contested disposition hearing was held on October 26, 2006. The court received into evidence the various reports submitted by DCFS. Mothers counsel then sought to have de Armass Evidence Code section 730 evaluation admitted into evidence. Counsel for DCFS and Linseys counsel objected to the evaluation on the basis that it was based on incomplete information and was therefore inaccurate. Mothers counsel urged the court to consider the part of the evaluation addressing the relationship between Mother and the children, stating that it would be helpful to the court in deciding whether to grant reunification services.

The court replied, All right. Let me hear all argument for the 730. The court has before it the 730 evaluation. The court will indicate that we have read it. It doesnt say anything that we didnt already know. We already knew there was this relationship and so that is a given, but certainly this court can admit what is effective documents, but the relationship is clear. We know that. And its something that the court absolutely has to consider.

After further argument by counsel for DCFS, the children, and Mother, the court determined that reunification services would be denied. The court stated that Mother had not demonstrated any connection with the seriousness of this situation, and a lack of growth, and therefore ordering reunification services would be foolhardy and wishful thinking, despite the general desire to return children to their parents whenever possible. The court found by clear and convincing evidence that it would not benefit the children to pursue reunification services in light of her persistence and consistent lack of demonstrated ability to understand the impact of what has happened here and her responsibility in it, and in light of the continued denial of the facts. [T]he childs reaching out to the mother for guidance, for help during this time was met with a cover up, which is an extremely abusive and harmful act by the mother. The minute order of the hearing indicates that the letter was admitted into evidence.

The court also found that visitation posed substantial risk of detriment to Linsey. Once the childs therapist at Stuart House, Mothers therapist, and the social worker deemed it appropriate, DCFS could begin facilitating visits. Carloss visits were to remain monitored in a therapeutic setting.

Finally, the court found that the children were not adoptable, and set the matter for a hearing to review the permanent plan in six months.

This appeal followed.

discussion

Mother contends that in denying reunification services, the juvenile court failed to consider all relevant evidence because the court did not admit into evidence the Evidence Code section 730 evaluation prepared by de Armas. We disagree.

The court stated very plainly that it had before it and had read the section 730 evaluation. In stating that the evaluation indicated that Mother and the children had a bonded relationshipinformation which was already evident from other sourcesthe court said that it can admit what is effective documents. Coupled with the minute order indicating the document was admitted into evidence, we conclude that the court intended to and did indeed admit the evaluation into evidence. In any event, it is clear that the court had read and considered the evaluation, and in fact took as a given the information sought to be established by Mothers counsel in reliance on the evaluation, that the children and Mother had a closely bonded relationship. In the courts words, the relationship is clear. We know that. And its something that the court absolutely has to consider. Thus, Mothers contention on appeal that the court failed to consider relevant evidence is incorrect.

As to the order suspending Mothers visitation with Linsey, Mother argues that Linseys therapist never actually stated that visitation between Mother and Linsey would be detrimental, and thus the court did not base the suspension of visitation on sufficient evidence. Rather, she merely expressed uncertainty regarding the continuing monitored visitation, stating that it was unclear at this time if monitored visits with her mother are in Linseys best interest. However, as Mother must acknowledge, Linseys therapist also said that because of Mothers repeated failure to protect Linsey and her continued denial and disbelief that sexual abuse occurred, Mother should first receive substantial treatment, and only then should she be evaluated to determine if visitation was appropriate.

In contesting the order suspending visitation, Mother again relies on the courts purported error in failing to admit into evidence or consider the evaluation prepared by de Armas. We have concluded to the contrary, that the court fully considered the evaluation and accepted as true the nature of the relationship between Linsey and Mother as observed and reported by de Armas. Nonetheless, the court concluded that suspending visitation was in the childs best interest, based on Mothers absolute lack of growth or change in her awareness of the nature and severity of the abuse that occurred. Mother had not accepted responsibility for her failure to protect Linsey, or understood the damage that she had done to the child by disregarding her disclosures of the abuse. Based on these findings, which were supported by substantial evidence such as the therapists reportsincluding Mothers therapistwe find that the courts order suspending visitation in no way constituted an abuse of discretion.

disposition

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1] Carlos T., Sr., (Father) is not a party to this appeal.