M.S. v. Superior Court
Filed 5/24/13 M.S. v. Superior Court CA4/2
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M.S., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest. | E058081 (Super.Ct.No. J234416) OPINION |
ORIGINAL
PROCEEDINGS; petition for extraordinary
writ. Cheryl C. Kersey, Judge. Petition denied.
Law
Offices of Allen S. Remes and Allen S. Remes for Petitioner.
No
appearance for Respondent.
Jean-Rene
Basle, County Counsel,
Kristina M. Robb and Adam Ebright, Deputy County Counsel, for Real Party in
Interest.
In this
petition M.F. (Father), the father of the dependent minor child M.S. (the
minor), challenges an order setting a “selection and implementation†hearing
pursuant to Welfare and Institutions Code section 366.26
before this court, we find no error and deny the petition.
STATEMENT OF FACTS
The
minor came to the attention of real party San
Bernardino County Children and Family Services (CFS) in August of 2010
after her older sister, A.L., reported that she had been sexually abused by
Father, A.L.’s stepfather. A dependency
petition on M.S.’s behalf was filed alleging “failure to protect†and “sexual
abuse of sibling†(§ 300, subds. (b) and (d).)
A.L. was 16 at the time and M.S. eight.
A.L. reported that Father sexually fondled her and otherwise molested
her; M.S. reported that Father “washes her up†in the shower. Law enforcement personnel informed the social
worker that there was domestic violence and substance abuse in the home. The parents’ home appeared generally adequate,
although there was little food as they had run out of money late in Father’s
pay period.
After a contested
completed on January 12, 2011, the court found M.S. to
come within multiple provisions of section 300, including subdivision (d) in that she was at risk of sexual abuse
because A.L. had been molested by Father and he had behaved inappropriately, in
a sexual context, with M.S. M.S. was
continued in foster care, in which she had been placed following detention. Reunification services were ordered for both
parents. Father was ordered to
participate in counseling concerning his role as a sexual abuser and domestic
violence, as well as parenting and drug testing.
The six-month report filed
on July 1, 2011, reflected that M.S. had adjusted well to her foster
placement although she did “not understand what appropriate father/daughter
boundaries are.†The social worker had
submitted referrals for the required counseling to Catholic Charities, but it
was reported that Mother and Father had not been contacted. In June of 2011 Father told the social worker
that he and Mother had independently enrolled in domestic violence and
parenting classes. However, both he and
Mother continued to deny the allegations of sexual impropriety. Services were ordered continued for another
six months.
By the time the 12-month
report was filed in early January 2012, the social worker indicated that Father
had made “some . . . moderate progress.â€
It was noted that the parents had refused to accept the services arranged
by CFS but had attended services “of their own choosing.†A psychologist arranged by CFS had telephoned
several times to make an appointment, but there was no answer. When finally reached, Father refused to
attend because he was working, although the psychologist offered evening
appointments. Additional referrals for
evening sessions approved by CFS were also rejected. Even more troubling to the social worker was
the fact that the therapist who was providing services to Father expressed
disdain for the jurisdictional findings of sexual abuse and told the social
worker that she did not believe Father had abused A.L.
Despite this, the report
recommended the continuance of services.
However, in an addendum filed about a month later, the recommendation
was changed to termination of services.
The social worker stated that although a letter had been received from
the parents’ therapist, notably absent from the recital of progress and goals
was any issue of sexual abuse. It was
also briefly indicated that M.S. was now disclosing instances of sexual
abuse. A subsequently filed report
elaborated that M.S. had been observed placing objects in her vagina and that
she had told her foster mother that her parents used to “‘take turns’ playing
with her (putting objects in her vagina) and they used to ‘join her in the
bathtub or in her bed.’†M.S. also told
the social worker that her parents had touched her “private parts†in the
bathtub and “it hurt;†she also said that this took place from the age of four
until her eighth birthday, when she told them to stop. Also provided to the court was a report from
a family therapist who was working with M.S., and who noted that M.S.
demonstrated several signs of abuse such as excessive masturbation and
bedwetting.
The court found that the
parents have failed to participate regularly and make substantive progress in
the reunification process and terminated services as of May 31, 2012. No appellate review was sought. The court also found that M.S. was not
adoptable and did not schedule a hearing pursuant to section 366.26.
Next,
on November 20, 2012, Father filed a request for modification under section 388
in which he asked to have M.S. returned to his custody. He presented certificates from a domestic
violence class and a parenting class, as well as the letter from his therapist
previously filed by the social worker.
Also attached was the transcript from an interview conducted with M.S.
in February of 2012 in which she arguably disclaimed any abuse.
assessment,†which concluded that he showed no signs of interest in
“prepubescent†children
name="_ftnref5" title="">[5] and did “not appear to demonstrate a deviant
sexual interest.†The assessor found
that the “probability†that he had molested A.L. and would molest M.S. was
“low.â€
Father’s
request was heard in connection with a status review hearing. (§ 366.)
The minor was called to testify and said that she wanted to see Mother
again, but that “I don’t miss them.â€
She
testified that her last visit with Father, perhaps three months earlier, “went
good,†but she felt “okay†when the visit ended. She also agreed that she had generally felt
“safe†when living with her parents.
After
hearing all the testimony—including from the foster mother—the court determined
that a hearing should be held under section 366.26, but reinstated visits with
Mother. Father’s request was implicitly
rejected.
In
this petition Father appears to argue that services were inadequate—that is the
gist of the authorities he cites—but he also contends, or at least suggests,
that no abuse occurred and that the minor should have been returned to his
custody because he had completed every program.
His claims are without merit.
DISCUSSION
First,
as CFS points out, Father did not seek review of the order terminating
reunification services which was made in May of 2012. At that time, the court found that reasonable
services had been provided. Interlocutory appeal of orders subsequent to
the jurisdictional/dispositional “judgment†is the rule in dependency
proceedings. (§ 395;
532.) As no hearing under section 366.26
was set at that time, Father could have challenged this finding (and the
subsequent termination of services) by appeal.
(See In re Julie M. (1999) 69
Cal.App.4th 41, 43.) His attempt to
raise the issue almost a year later in connection with a section 366.26,
subdivision (l) hearing is
unavailing. We also note that the
termination of services was not based upon the conclusion that Father had not
participated in services, which could have been due to the unavailability of
adequate services. Father
court found that he had not benefitted, and this is directly attributable to
Father’s failure to engage with a therapist who would help him explore the
issues relating to the jurisdictional findings, not to the absence of adequate
referrals.
Secondly,
insofar as Father directly asserts that M.S. should have been returned to his
custody, this position is also meritless.
As we have suggested above, the difficulty is that by the time the trial
court held the current status review and considered Father’s modification
request, it had long since decided, by an unchallenged jurisdictional finding,
that Father did sexually abuse A.L.,
and at the least behaved inappropriately with M.S. during bathing. The court’s refusal to accept new evidence
attacking this finding was perfectly proper.
Given the jurisdictional finding, it was incumbent upon Father to at
least make efforts to educate himself about the sexual abuse of children and to
explore in therapy the boundaries of appropriate parent-child behavior. It was not Father’s place to decide that he
did not need therapy or counseling regarding conduct which the trial court
found did occur.
DISPOSITION
The petition for writ of
mandate is denied.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting
P. J.
We concur:
RICHLI
J.
MILLER
J.
Welfare and Institutions Code.
petition.
