Michael P. v. Sup. Ct.

Filed 10/12/06 Michael P. v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge orders of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Petition denied.

Deborah A. Kwast, Public Defender, Frank Ospino, Assistant Public Defender, Lauren Johnson and Paul T. DeQuattro, Deputy Public Defenders, for Petitioner.

Benjamin P. de Mayo, County Counsel, Dana J. Stits and Jeannie Su, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

Law Office of Harold Laflamme and Lawrence A. Aufill, for Real Party in Interest Raven P.

* * *

Michael P. (father) seeks extraordinary relief from juvenile court orders terminating reunification services and scheduling a Welfare and Institutions Code section 366.26^[1] permanency hearing for his daughter, Raven P. Father challenges the sufficiency of the evidence to support the trial court’s finding that the father’s custody of Raven would create a substantial risk of detriment to her.

We conclude substantial evidence demonstrates a number of factors disclosing a substantial risk of detriment to Raven, including evidence father molested a 13-year-old relative with whom he had a parent-child relationship, engaged in multiple unreported acts of sexual contact with minors, had a continuing strong sexual interest in adolescent girls, displayed a continuing self-image as an adolescent, persistently believed his sexual-abuse victims shared culpability for his molestation of them, and was sexually promiscuous. We therefore affirm the trial court’s orders.

I

Factual and Procedural Background

Raven was three years old in September 2004, when she was taken into protective custody on allegations of general neglect and caretaker absence. Police, responding to a neighbor’s call that a child had been crying for several hours, discovered Raven on a high countertop in her mother’s apartment, sitting in a puddle of her own urine. Officers found Raven’s mother Veronica P., lying unconscious in the apartment, apparently having ingested a large amount of Oxycontin, a prescription pain medication. Veronica, who has a history of drug abuse, admitted to using methamphetamine. Father, Veronica’s ex-husband, is a 35-year-old registered sex offender supervised by the Orange County Probation Department. Father’s sex offender status arose from a molestation incident occurring in February 2001, involving 13-year-old Heather U. -- Veronica’s sister -- and Heather K., Heather U.’s 14 or 15-year-old friend. The incident occurred after Veronica went to bed, and father engaged the girls in a game of “Truth or Dare.” Father admitted the incident involved oral copulation of the older girl, digital penetration of both girls, and masturbation. As a result of the incident, father was arrested and pleaded guilty to five felony counts: Lewd act upon a child under 14 (Pen. Code, § 288, subd. (a)); lewd act upon a child 14 or 15 by person 10 years older (Pen. Code, § 288, subd. (c)); act of sexual penetration upon child under 16 (Pen. Code, § 289, subd. (i)); act of sexual penetration upon child under 14 by person 10 years older (Pen. Code, § 289, subd. (j); and oral copulation of child under 16 by person over 21 (Pen. Code, § 288a, subd. (b)(2)). The superior court placed father on formal probation on condition he serve one year in jail and obey other terms imposed by the court. On his superior court guilty plea form, father admitted that between February 1, 2001 to February 28, 2001, he molested Heather U. on two separate occasions, and molested Heather K. on three separate occasions. Although father’s probation conditions prohibited him from residing with a child under age 18, the conditions expressly excepted Raven. After father’s conviction, Veronica filed for divorce. In May 2003, father began a sex offender relapse prevention program through weekly group therapy with Eduardo Rendon, a licensed clinical social worker.

Shortly after Raven was taken into custody, Orange County Social Services Agency (SSA) prepared a detention report. The report cited a previous child abuse report stating that father admitted sleeping with Raven during her overnight visits with him, despite orders from his probation officer prohibiting this conduct. In January 2005, the court sustained an amended petition under section 300, subdivision (b), failure to protect. In April 2005, the court vested custody of Raven with SSA, and ordered SSA to provide both parents with family reunification services, including sexual abuse counseling and parenting classes for father, and allowing father weekly monitored visits. Father’s live-in girlfriend, Sheree Estrella, was to act as monitor.

At the six-month review, SSA reported father was making progress with his service plan. Initially dropped from his parenting classes for missing three times, father gained reinstatement and had been attending classes. He began sex offender therapy with John Adsit of the University of California, Irvine, Medical Center Focus program. Father also attended parenting classes and had consistently visited with Raven twice weekly. Veronica had made no progress on her plan, had not appeared for drug testing, and her whereabouts were unknown to SSA.

At the 12-month review period, SSA reported father again had been terminated from parenting education, but was reinstated. Father also missed at least six sessions of sex offender therapy with Adsit. Although father denied he had broken up with Sheree, his probation officer reported they were no longer living together. The officer also reported that father’s life was unstable, as he had changed residences, was deluged with collection notices and parking tickets, and had violated his probation by drinking. The SSA noted the mother had not complied with her service plan, had not visited Raven, and had been arrested for a felony burglary and drug possession. The SSA noted “[t]he father is not considered a safe placement of the child at this time due to his sexual abuse issues,” and recommended termination of reunification services to both parents.

At the 12-month review hearing, the court noted “that there has been some progress made, [a]s to father, toward alleviating or mitigating the causes necessitating placement, and that there has been some compliance, as to father, with the service plan.” The court did not terminate reunification services to father, but modified his service plan to require his participation in individual counseling to address impulsiveness and emotional instability, to participate in a peer group for sex offenders, and to address sexual perpetration issues in individual counseling with Adsit. The court referred father to Sexual Offenders Anonymous.

The 18-month review hearing occurred over a seven-day period, and included the testimony of father, Veronica, and various social workers and psychologists. At the conclusion, the court found that the parents had not substantially complied with the service plan, and that the parents’ progress toward alleviating or mitigating the causes necessitating placement had been unsatisfactory. The trial court concluded that returning Raven to either parent would create a substantial risk of detriment to her well-being, terminated reunification services, and set a .26 hearing. Father filed a timely notice of intent to file a writ petition.

II

Standard of Review

“When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial court’s determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)

III

Discussion

The 18-month review hearing is governed by section 366.22, which provides in part: “The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) Father contends substantial evidence does not support the trial court’s finding that returning Raven to him would create a substantial risk of detriment to her physical or emotional well-being. Father cites the conclusions of several psychologists and therapists who treated or evaluated him that he poses no threat of harm to his daughter.

For example, father notes “Mr. Adsit of UCI Focus was the service provider for the treatment program through the juvenile court for the father’s sexual abuse issues; Mr. Adsit believed the father would be fine alone with his daughter and expressed no concerns.” Father’s characterization of Adsit’s analysis is not completely accurate. True, during one conversation with the social worker, Adsit expressed his view that “the father will do fine alone with his daughter.” But Adsit had also expressed concerns about father’s behavior when Raven became a teenager. Adsit also noted father “may regress under stress and offend again.”

Father also cites the views of Dr. Wasserman, his individual provider/program plan therapist, who “had no concerns of the safety or risks concerning” father’s parenting of Raven. As father notes, however, Dr. Wasserman’s therapy and evaluation focused on nonsexual issues. Dr. Wasserman noted father’s immaturity, describing him as “childlike at times.”

Father also cites the view of Dr. Wesley Maram, whom the court assigned to assess current and future risks father posed to Raven. Maram reported that father “does not pose a current or future risk to the minor child, Raven.”

At the hearing, however, Maram qualified his conclusion, as follows: “Q: . . . Did you opine whether the father . . . in this case posed a sexual risk to his child, if he were granted custody of her? . . . [MARAM]: I qualified my statement. I didn’t find any evidence in support of him being a risk to children, specifically his daughter. However, I did not conduct a 730 child custody evaluation. I’m not prepared to make a statement whether he would have custody of his child. That’s outside of my scope of expertise.” Maram explained his conclusion as follows: “[B]ased on my evaluation, that I find no evidence to support that there’s a persistent sexual interest in children[,] [a]nd that extrapolated from that there is no indication from the information that I had derived that he posed [a] risk to his daughter.” Maram clarified that the term “children,” as used by him, referred only to prepubescent children, not adolescents. In his written report, however, Maram determined through objective measures that father had a strong sexual interest in adolescent females, stronger than he had in adult women. Maram considered father to be at low risk for reoffending, but noted that the low risk group had a recidivism rate of between seven to 10 percent. Maram also reported concerns over father’s emotional stability.

Although some of the evidence father cites indicates he posed no significant risk to Raven, we conclude substantial evidence also supports the trial court’s finding to the contrary.

For example, apparently unknown to Maram, father’s molestation of Heather K. and Heather U. was not an isolated incident. Evidence was presented that father had an ongoing habit of having sex with minors until the time of his arrest, and father admitted to numerous undisclosed victims. Indeed, father started his sexual relationship with Veronica when she was only 16, at a time he was over 10 years older. In considering the likelihood of father reoffending, the trial court noted that up until two months before the 18-month review, father repeatedly obtained employment with establishments that attracted teenagers, and changed employment only at the urging of Adsit, his sex offender therapist. The trial court also recognized that despite being 35 years old and college-educated, father still continues to dress and act like an adolescent.

In assessing the likelihood of father reoffending, the trial court relied in large part on the testimony of Eduardo Rendon, who conducted father’s sex relapse prevention therapy sessions for over three years. The trial court summarized Rendon’s testimony as follows: “[Mr. Rendon] believes father at the present time continues to struggle with immature behavior, to be attracted to young teenage women, and has an ongoing obsession with sex. He is promiscuous. He has not proven capable of having a monogamous, healthy adult relationship. . . . Mr. Rendon expresses a significant doubt about father’s internalization and genuine acceptance of responsibility for his criminal conduct and, therefore, remains at risk of reoffending.”

Father does not dispute the trial court’s characterization of Rendon’s testimony, or even its truth. Instead, father contends Rendon’s testimony fails to demonstrate a substantial risk that father may molest Raven. True, Rendon stated he did not believe father would molest Raven, noting the lack of evidence father had a current sexual interest in the girl. Rendon, however, could not completely rule out father molesting Raven in the future, citing father’s molestation of his 13-year-old sister in law. Rendon found this molestation was significant, because it demonstrated father had no clear boundaries regarding his choice of sex partners. Rendon opined that father posed a greater risk of molesting Raven when she reached ages 13 or 14, especially if father lived alone with her. Moreover, Rendon noted that even if father never developed any sexual interest in his daughter, Raven could not have friends over to visit while in father’s custody because he believed father would become aroused and relapse. Rendon believed that a 24-hour monitor would be required if Raven were to reside with father.

The court found that father’s molestation of Heather U., however, had significance beyond that recognized by Rendon. Apparently unknown to Rendon and the other professionals who testified at trial, father shared a father/child relationship with Heather U. during the time he molested her. Specifically, the trial court found credible Veronica’s testimony that Heather U. had been living with father and Veronica for five months before the molestation occurred, and had assumed a parental role toward her. For example, all three would have dinner together, and father would help Heather with her homework. The court found that the parent/child relationship father occupied with Heather U. “should have been a bar to his acting out, and the evidence established that his attraction to adolescent females was so overwhelming that he abandoned social mores that you would normally expect someone to adhere to.”

The evidence demonstrating father’s previous molestation of a relative with whom he occupied a parental role, along with Rendon’s testimony regarding father’s likelihood of reoffending, constitute substantial evidence supporting its finding that returning Raven to father would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being. Accordingly, we affirm the trial court’s orders.

IV

Disposition

The petition is denied.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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