In re Brandon S.

Filed 6/6/07 In re Brandon S. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Marilyn Kading Martinez, Commissioner. Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

____________________

Zoltan C. (father) appeals from the juvenile courtorder terminating jurisdiction and ordering that there be no visitation between father and Brandon S. (Brandon), the minor (born Feb. 1995).

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prior Appeal

This is the second appeal by father in this dependency action. In the prior appeal, father challenged the juvenile courts jurisdiction and disposition findings and orders, the denial of a request for a continuance of the jurisdiction hearing, and the denial of a Marsden[1]hearing to have his court-appointed attorney removed. In an opinion rendered on February 1, 2006, we affirmed the juvenile courts findings and orders. (In re Brandon S. (Feb. 1, 2006, B181207) [unpub. opn.].)

Specifically, we found that the evidence supporting the orders of jurisdiction, wardship, and disposition are supported by substantial evidence.

The father engaged in at least one act of excessive discipline of the child by beating him up to nine times with a belt. The beating left welts lasting several days. The mother had no influence over the father. It was predictable that the conflict between Brandon and his father would persist without intervention, and there was a risk of further excessive corporal punishment without juvenile court intervention.

Moreover, the father was engaged in bullying the child and had threatened further beatings. The father was not in compliance with the superior courts drug testing order and was drinking alcoholic beverages during visitation and when driving Brandon in the car. He also was taking prescription medication that he admitted affected his mood. Brandon was afraid of his father, and visitation left Brandon with stomach aches. The adjudication testimony and the information in social studies was reasonable, credible, and of solid value, and the evidence supported the juvenile courts orders. (In re Brandon S., supra, B181207, at pp. 1617.)

Progress Hearing

At the conclusion of the disposition hearing, the juvenile court scheduled a progress hearing for April 25, 2005, and a six-month review hearing for July 25, 2005. For the progress hearing, the social worker reported that on January 31, 2005, she attempted to contact father. His home telephone had been disconnected. She obtained his cellular telephone number from mother. When the social worker tried that number, a man answered and, in an angry tone of voice, said that she had the wrong number and hung up the telephone. On February 2, 2005, the social worker sent a contact letter to father, along with the disposition orders. As of April 21, 2005, father had not contacted the social worker.

The social worker further reported that she observed Brandon to be a friendly, quiet, happy, and shy boy. He told the social worker that he was happy living with his mother. When asked if he had had any visits or contacts with father, he answered no, with a smile on his face.

In a letter dated April 12, 2005, Brandons therapist, Marilyn Altman (Altman) advised that she had been seeing Brandon for individual therapy since October 5, 2004. In therapy, Brandon was expressing very negative feelings about visitation with father. During sessions, he consistently shared that he was frightened when visiting father and sad because of derogatory comments father made to him during the visits. Brandon said that he would lose his appetite after visitation and felt very sad. He was relieved that father was not asking for visitation, but he remained anxious about any future meetings with father.

Brandons mother reported that each month she sent Brandons school schedule to father and a schedule of his extracurricular activities as soon as she received them. However, she had not heard from father.

Brandons mother had completed parents beyond conflict and had participated in conjoint therapy with Brandon.

Father did not attend the progress hearing.

Six-month Review Hearing

For the six-month review hearing, the social worker reported that, in addition to the February 2, 2005, contact letter, she had left messages on fathers cellular telephone. He had not contacted her, had not requested a visit since January 2005, and was not in compliance with the court-ordered case plan. The social worker had sent Brandons school and extracurricular schedule to father on a monthly basis.

The social worker also advised that Brandons mother had completed the case plan and was meeting all of Brandons needs; Brandon was living in a clean and stable home and there were no risks. She recommended that the juvenile court terminate jurisdiction.

Altman reported that Brandon was still expressing relief that father was not asking for visits, but remained anxious about the possibility of future visits.

At the review hearing, Brandons attorney noted that father had not visited Brandon for the last six months and Brandon continued to fear him. The attorney requested that the custody order issued upon termination of juvenile court jurisdiction provide that Brandon not have any contact with father. The juvenile court found that notice to father of the six-month review hearing was late and had been sent to the wrong address. Accordingly, it continued the hearing to August 31, 2005.

Continued Review Hearing

Father was properly noticed for the continued review hearing, but did not attend. The juvenile court indicated that Brandon was being very well cared for by his mother and there did not appear to be any risks in the home. However, because fathers prior appeal was pending, the juvenile court did not terminate jurisdiction. Instead, it set another review hearing for February 27, 2006.

Review Hearing

For the February 27, 2006, review hearing, the social worker reported that the parents family law custody order awarded the parents joint legal custody and placed alcohol restrictions and drug testing requirements on father. Brandons mother had completed the requirements of the juvenile court-ordered case plan and was appropriately caring for Brandon. Father had not provided any proof of compliance with any aspect of the court-ordered case plan, but, on January 19, 2006, had contacted the social worker and asked to resume his visits with Brandon.

The social worker monitored a visit on January 26, 2006. Before Brandon entered the room for the visit, he asked the social worker if he could end the visit if he was uncomfortable. When Brandon entered the room, he sat in a chair one seat away from father. Father attempted to interact and converse with Brandon. Brandon, however, would not respond. Father told Brandon that he should love both his parents. After the visit, father asked Brandon for a hug, but Brandon refused.

During a visit on February 10, 2006, father tried to interact with Brandon by asking him questions about his school and his extracurricular and leisure time activities. But when Brandon would not respond, father started repeating himself and raising his voice, and got in Brandons face, waiting for an answer. When Brandon remained silent, fathers voice became stronger and he demanded an answer, saying yes or no, what is it? The social worker observed that Brandon became intimidated and slid further to the edge of his seat. After a while, Brandon told the social worker that he wanted to end the visit. When the social worker asked Brandon if he was sure, father became angry and demanded that the social worker not end the visit. Because Brandon appeared to be afraid, the social worker stopped the visit.

After the visit was stopped, father expressed his disappointment and frustration with the Department of Children and Family Services (DCFS) for allowing Brandon to leave 15 minutes early, and stated that DCFS should force Brandon to visit. A social worker met with father and encouraged him to enroll in individual therapy and seek a neutral conjoint therapist to facilitate future visitation and begin addressing his strained relationship with Brandon. The social worker believed that father had a difficult time comprehending Brandons level of discomfort.

The social worker noted in her report that, since September 16, 2004, father had visited Brandon only 10 times, and no visit had occurred between January 6, 2005, and January 26, 2006.

Brandon was very happy living with his mother. And, he had been consistently adamant that he did not want to visit father.

In light of the foregoing, the social worker recommended that the juvenile court terminate jurisdiction with a family law order awarding sole physical and legal custody of Brandon to his mother and provide that fathers contact with Brandon be in conjoint therapy and that his visits not be liberalized without a recommendation from the conjoint therapist.

Father attended the February 27, 2006, hearing. His attorney advised the juvenile court that when father learned of the social workers recommendation, he located an individual therapist for himself and a conjoint therapist, he prepaid for four visits, and he scheduled the first conjoint visit for March 16, 2006. He made these arrangements without any input from Brandons individual therapist. When DCFSs attorney asked the juvenile court to authorize the social worker to provide the therapists with copies of the social workers reports, father objected.

The juvenile court then noted that Brandons mother was in full compliance with the court-ordered case plan and that, after a year, father had done nothing. It indicated that it would likely terminate jurisdiction and that it might order no visits for father. However, because fathers previous appeal was still pending, the juvenile court continued the hearing to April 7, 2006. It further ordered that fathers visits take place in a therapeutic setting, such as conjoint therapy sessions, that such sessions could commence only after Brandons individual therapist, fathers individual therapist, and the conjoint therapist conferred and discussed the facts and concerns of this case, and that, if father did not allow his individual therapist to communicate with the other therapists, there would be no conjoint sessions.

Further DCFS Report

In a subsequent DCFS report, the social worker revealed her contacts with the individual therapists. On March 21, 2006, Altman informed the social worker that she did not feel that Brandon was ready to begin conjoint counseling. Fathers individual therapist informed the social worker that father had had only one session and another one was scheduled for April 4, 2006. In a March 22, 2006, letter, the conjoint therapist advised the social worker that she had seen father twice and, because of the limited information she had regarding the case, she did not feel qualified to give a recommendation as to whether conjoint counseling should begin or if Brandon should be forced to attend conjoint sessions. Based upon the therapists past experience with cases where a child had been forced to attend conjoint therapy with a parent, the therapist did not believe that the sessions would be advantageous. In fact, the emotional impact upon the child would likely be more negative than positive.

DCFS recommended that the juvenile court terminate jurisdiction and issue a family law order awarding sole physical and legal custody of Brandon to Brandons mother. DCFS also recommended that fathers visitation be monitored in a therapeutic setting when deemed appropriate by all therapists. Finally, DCFS recommended that visitation be liberalized only upon the recommendation of the conjoint therapist.

On April 7, 2006, the juvenile court still had not received the remittitur regarding fathers prior appeal; therefore, it continued the hearing to May 12, 2006. Because the juvenile court denied fathers request to force Brandon to attend conjoint therapy sessions with a conjoint therapist selected by father, father asked that the hearing be set for contest.

Subsequent Juvenile Court Report and Hearing

On April 27, 2006, Brandons therapist provided a letter advising that Brandon had gone through a significant amount of stress during the case regarding father and visitation, he had been repeatedly asked to explain why he was afraid of father, he clarified his reasons to the therapist, and he should not be questioned again about the issue. Because Brandons therapist was ill on May 12, 2006, and could not go to court, the hearing was continued to May 17, 2006.

On May 17, 2006, Brandons attorney informed the juvenile court that Brandons therapist had agreed to conduct eight conjoint therapy sessions. The juvenile court ordered father and Brandon to participate in conjoint counseling with Brandons therapist on the condition that father was actively participating in individual counseling. The juvenile court further ordered Brandons parents to share the cost of conjoint counseling. The juvenile court ordered a report addressing the progress of the conjoint counseling, and the matter was continued to July 26, 2006.

Progress Report

On July 24, 2006, Brandons therapist reported that father and Brandon had been seen in conjoint counseling on July 11 and 18, 2006. Father failed to attend a session on June 27, 2006, and a session on June 13, 2006 had to be cancelled by the therapist. A session was scheduled for July 25, 2006.

The therapist reported that, for the July 18, 2006, session, father refused to pay his share of the insurance copayment of $7.50. Because father began to get angry in the waiting room and Brandon was present, she conducted the session. However, she explained, no additional sessions would be conducted if he continued to refuse to pay his share.

Regarding the sessions, Brandon continued to be quiet, was unable to make eye contact with father and, after father left, Brandon stated that he was afraid of father. Father continued to insist that Brandon relate to him and, in the first session, he tried to get Brandon to hold or shake his hand. Father was resistant to parenting advice and tended to be intimidating in voice and mannerisms. Father would try to silence the therapist when he did not want to hear what she had to say. However, he did make some effort to be less intimidating.

On July 26, 2006, the social worker reported that on July 20, 2006, she attempted to contact father by telephone and left a message for him to return her call; he did not do so. On July 25, 2006, fathers therapist informed the social worker that father had missed many appointments for individual therapy. The last therapy session was in May 2006. Father had cancelled all appointments in June and July 2006. The next appointment was scheduled for July 27, 2006.

Based upon the foregoing, DCFS recommended that the juvenile court terminate jurisdiction and issue a family law order awarding sole legal and physical custody to Brandons mother. It further recommended that the juvenile court order that fathers visits with Brandon be monitored in a therapeutic setting when deemed appropriate by all therapists, and that visitation be liberalized only upon recommendation by the conjoint therapist. Father objected to that recommendation, and the juvenile court continued the matter for an evidentiary hearing. At fathers request, the juvenile court ordered that Brandon be present for the hearing. It further ordered no conjoint counseling session and no contact between Brandon and father.

Evidentiary Hearing (Welf. & Inst. Code, 364)[2]

At the evidentiary hearing on September 20, 2006, the juvenile court admitted the following reports and documents into evidence: (1) February 27, 2006, status review report; (2) February 13, 2006, letter from Altman; (3) April 7, 2006, interim review report; (4) March 22, 2006, letter from Sandra L. Jarboe; (5) July 26, 2006, addendum report; (6) July 24, 2006, letter from Altman; and (7) last minute information for court officer report for the July 26, 2006, hearing. At fathers request, the juvenile court also admitted: (1) a letter dated September 19, 2006, from M.C.L.A. Psychiatric Medical Group; and (2) a certificate of completion of parents beyond conflict, dated April 13, 2006.

Altman testified first. After setting forth her credentials and her treatment history with Brandon, she stated that the only stressor in [Brandons] life was visiting with his father, and [the visits] produced the symptoms of stomach aches, anxiety, anger, and a lot of fear. In all other areas of his life, he was performing way above average. She believed that Brandons symptoms started after an incident when father hit him. Over the course of his treatment, Brandon never became more comfortable with visiting father.

Altman then discussed some incidents that Brandon had mentioned to her in therapy that were unpleasant to him. For example, father would not take Brandon to games when he was supposed to play; father made him ride a bike when he was not feeling well; father made him stand outside while he did something in the house; father beat his dogs, including breaking a dogs leg one time; father did not allow Brandon to have friends visit.

Brandon indicated to Altman that he feared his visits with father because he did not want to be forced to do things that he did not want to do or go places that he did not want to go. He also was afraid of being hit by father. And, Brandon feared making father angry because father is very scary when he is angry. Although these topics could ordinarily be addressed in conjoint therapy, father was resistant to psychotherapy. He also resisted developing better communication skills with Brandon. He continued to intimidate and make demands upon Brandon. And, during the one conjoint session between father and Brandon, father interfered with Altmans attempts to control the sessions by talking over her and becoming argumentative.

While Altman observed Brandons mother kind of shrink into her chair in fathers presence, she did not believe that Brandons mothers feelings about father were the cause of Brandons fear; rather, Brandons fear was based upon his own experiences with father.

Based upon her observation of Brandon being frightened of father and upon Brandons physical and emotional symptoms during and after his visits with father, Altman opined that Brandon should not have visits with father at that time. According to Altman, visits would be detrimental to Brandons emotional health. She suggested that father participate in individual counseling for a period of time before another attempt at conjoint counseling take place. Father needed to learn how to listen to Brandon and take into account what Brandon was saying and how Brandon was feeling. Father also needed help with many parenting functions and with how he expressed himself. However, Altman explained, even if father made progress in these areas, future conjoint sessions would depend upon how Brandons individual sessions were proceeding and if he remained angry and fearful.

Finally, Altman testified that it was possible for Brandon to overcome his fear of father without conjoint sessions with father. Becoming older and more mature could result in more self control over his feelings. In fact, not having contact with father, over time, could help Brandon become more comfortable with himself and reduce his fear of and anger with father. Also, not forcing Brandon to have contact with father would be beneficial.

Upon the conclusion of Altmans testimony, fathers attorney asked the juvenile court to order visitation after father had participated in psychotherapy and the therapists had conferred on the issue. Brandons attorney and the DCFS attorney asked the juvenile court to find that visits with father would be detrimental to Brandon and to order no visits.

After hearing the evidence and considering oral argument, the juvenile court found, by clear and convincing evidence, that it would be detrimental for Brandon to have visits with father. Accordingly, it ordered that no visits take place. The juvenile court further found that there was no need for continued supervision and terminated jurisdiction. The juvenile court explained: The bases for the findings and orders as to the issue of visitation . . . [are that] for a substantial period of time, Brandon has been angry at his father and fearful of his father. [] He is very anxious about the issue of contact with his father. . . .  To experience the emotional and the physical symptoms that Brandon has experienced for a substantial period of time is clearly harmful to him. [] His father . . . wants an opportunity to have a relationship with his son. He argues that he will do whatever it takes. [Father] has not, to date, done whatever it takes, and doing what he has been doing, he has not learned. [] In my opinion, it is all about himself and not at all about his son. [] . . .  [] Since he has been in therapy since March of this year . . . he has not made substantial progress in addressing the issues that brought his son before this court. [] What is he doing in therapy?

The juvenile court then addressed father: I dont doubt that you are hurting because you feel the loss of your son. . . .  But there isnt anything from your therapist that you even have considered your sons perspective. . . .  [] In the conjoint sessions, you have overstepped your boundaries. . . .  [] You have been resistant to the advice given by the conjoint therapist. You have been intimidating in both voice and mannerisms. [] Your son couldnt even initially make eye contact with you, telling you that he was afraid of you, and yet you . . . insisted that Brandon relate to you by attempting to force him to hold or shake your hand. That was to gratify you, to meet your needs. That wasnt taking into consideration how your young son feels.

The juvenile court summarized: Father has still not accepted the responsibility which led to his son being in this court.

The juvenile court then ordered Brandons mothers attorney to prepare a custody order for the juvenile courts signature.

Jurisdiction was terminated, and Brandon was released to his mother.

Fathers timely appeal followed.

DISCUSSION

I. Juvenile Courts Order Denying Father Visitation

First, father challenges the juvenile courts order denying him visitation.

A. Standard of Review and Law Regarding Denial of Visitation

As the parties agree, we review the juvenile courts order denying father visitation for abuse of discretion. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.)

When a juvenile court awards custody of a child to one parent and terminates jurisdiction, it must address the visitation rights of the noncustodial parent. (In re Michael W. (1997) 54 Cal.App.4th 190, 195196.) Ordinarily, a juvenile court cannot deny visitation by a parent absent a finding of detriment. ( 361.5, subd. (f); 362.1, subd. (a)(1)(B).) The detriment finding is reviewed for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763; In re John V. (1992) 5 Cal.App.4th 1201, 12121213; In re Daniel C.H. (1990) 220 Cal.App.3d 814, 839.)

B. The Juvenile Court Properly Denied Father Visitation

Substantial evidence supports the juvenile courts finding that visits between Brandon and father would be detrimental to Brandon. Initial juvenile court jurisdiction was based upon the fact that Brandon was afraid of father; father beat Brandon with a belt during a visit and threatened further beatings. Father also bullied Brandon by calling him bad names. Brandons reason for not telephoning father between visits was because father was always mean to him when they talked. (In re Brandon S., supra, B181207, at p. 16) Visits with father made Brandon physically ill.

Since April 2005, Brandons therapist consistently reported that Brandon was frightened of father and saddened by derogatory comments that father made during the visits. The anxiety caused by the visits and the mere prospect of a visit caused Brandon to loose his appetite and have a stomach ache. Brandon was relieved when father did not visit for an entire year. When father started visiting again in January 2006, the second visit had to be cancelled because father became angry and started bullying Brandon. When conjoint sessions were tried, Brandons therapist observed that Brandon was unable to make eye contact with father, and father continued to attempt to intimidate Brandon and the therapist. The therapist testified that because of the physical and emotional trauma experienced by Brandon, contact with father was detrimental to him he should not have any contact with father.

Taken together, this evidence supports the juvenile courts finding of detriment. It follows that the juvenile court acted well within its discretion in denying father any visitation with Brandon.

II. The Juvenile Court Properly Terminated Jurisdiction

Second, father contends that the juvenile court abused its discretion in terminating jurisdiction.

As a preliminary matter, we note that father does not correctly set forth the law. At a section 364 hearing, where a child has been placed in a parents physical custody, as here, the only issue before the juvenile court is whether continued supervision is necessary. ( 364; In re Natasha A. (1996) 42 Cal.App.4th 28, 35.) The juvenile court is required to terminate jurisdiction unless the social worker establishes by a preponderance of the evidence that conditions still exist that justify the continued assumption of jurisdiction or that those conditions are likely to exist if supervision is withdrawn. ( 364, subd. (c).) By its very terms section 364 limits the courts inquiry to whether the conditions for continuing supervision exist. (In re Elaine E. (1990) 221 Cal.App.3d 809, 814.)

Section 362.4 provides that when a juvenile court terminates jurisdiction, it may issue an order determining the custody of, or visitation with, the child. ( 362.4.) If, as here, the parents have a family law case open in the superior court, the order is filed in that proceeding. ( 362.4.) Thereafter, the parties may seek relief or modification of that order in the superior court, based on a showing of the best interests of the child. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 516.)

All the evidence at the section 364 hearing indicated that there was no risk to Brandon that required continuing juvenile court supervision, as long as appropriate protective orders were in place. Those orders were put in place, and juvenile court supervision was no longer required. Once the juvenile court found, as it did, that supervision was no longer necessary, it had no discretion to continue jurisdiction. It thus properly dismissed the case.

DISPOSITION

The juvenile courts order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

DOI TODD

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[1]People v. Marsden (1970) 2 Cal.3d 118.

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