Filed 3/4/22 In re A.H. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from orders of the Superior Court of the County of Los Angeles, D. Brett Bianco, Judge. Affirmed.

John L. Dodd & Associates, John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant A.H.

Annie Greenleaf, under appointment by the Court of Appeal, for Minor and Respondent

Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Defendant and Respondent M.B.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.

_________________________________

I. INTRODUCTION

The juvenile court found that A.H. (father) sexually abused his seven-year-old daughter (the child), and thereafter issued orders terminating visitation with her and granting sole legal and physical custody to M.B. (mother). On appeal from the original no-visitation order, father contends: the court issued the order without notice in violation of his due process and statutory rights; there was insufficient evidence to support it; the order improperly shifted to him the burden of showing a right to visitation; and it was not the least restrictive means by which to safeguard the child. In his appeal from the subsequent exit orders, father maintains that the no-visitation exit order must be reversed because it was based on the original order and that the court abused its discretion when it ordered sole legal custody to mother. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Prior History

In May 2013, the juvenile court sustained a Welfare and Institutions Code section 300[1] petition alleging that father and mother were “current abuser[s] of alcohol” and that they had left the child in the home of relatives without creating an appropriate plan for her care. Both parents were granted reunification services, but father’s services were terminated due to lack of compliance. After mother successfully completed her reunification and family maintenance services, the case was closed with exit orders granting mother sole physical custody, mother and father joint legal custody, and father unmonitored visitation.

B. Current Petition

On February 19, 2020, the Department filed a petition that alleged in counts b-1 and d-1 that father had sexually abused the child by digitally penetrating her, exposing his penis to her, and instructing her not to tell others about the abuse. In count b-2, the Department alleged that father had an unresolved history of alcohol abuse and was a current abuser. It also alleged that he had been under the influence on prior occasions while the child was under his care and that he had been admitted to the hospital suffering withdrawals in early February 2020. In addition, the Department alleged that mother was aware of father’s alcohol abuse, but had failed to protect the child from it by allowing father unlimited access to her.

At the February 20, 2020, detention hearing, the juvenile court found that the child was a person described in section 300, removed her from father, and ordered that father was to have no contact with the child or mother. The court released the child to mother and ordered the Department to provide the child with individual counseling.

On March 20, 2020, the Department filed its jurisdiction/disposition report, in which it detailed the evidence in support of its allegations. The Department recommended that the no contact order remain in full force and effect with the Department granted discretion to modify based on father’s compliance with his case plan.

At the June 2, 2020, arraignment hearing, the juvenile court continued its no contact order, but also permitted father to have one hour weekly visits with the child in a therapeutic setting when deemed appropriate by the child’s therapist. The Department was granted discretion to allow the therapeutic visits prior to July 13, 2020.

On June 30, 2020, the Department filed a last minute information report stating that the child’s therapist advised that therapy was still in the rapport building stage and the therapist was unable to make a recommendation concerning father’s visits with the child.

At the July 13, 2020, progress hearing, the juvenile court ordered a last minute information report updating the court on the status of the rapport-building stage, and ordered the therapist to be available for an appearance.

At the August 3, 2020, progress hearing, the child’s therapist appeared and informed the juvenile court that she had been seeing the child weekly since April 16, 2020. Although the therapist reported that she had established a rapport with the child, she could not currently recommend visitation with father. She indicated that she may consider it in the future. The juvenile court ordered the Department to facilitate in-person visitation for one hour a week in a therapeutic setting with a therapist other than the child’s current therapist. According to the court, “a single weekly visit for a short duration in a therapeutic setting [should be] fairly innocuous notwithstanding the seriousness of the charges.”

In an August 12, 2020, last minute information report, a social worker stated that the Department had been unable to locate a therapist to monitor the court-ordered visitation in a therapeutic setting. She also reported that the child liked her sessions with her therapist and was comfortable speaking with her. But the social worker further reported that the child later called her after an attorney attempted to arrange a therapeutic session with father. According to the social worker, the child was “in a panic. She begged [the social worker and said] that she did not want visits with father because she was so scared. She felt scared and mad because she did not want to see him.” The social worker attempted to comfort the child, but the child could not stop crying.

At the August 17, 2020, adjudication hearing, the juvenile court sustained the petition and ordered that the child be removed from father. The court also ordered family maintenance services for mother and the child, but only enhancement services for father. In addition, the court restated its prior order for monitored visits with father once a week for one hour in a therapeutic setting. And, the court ordered father to attend a full drug/alcohol program with after care and individual counseling to address substance abuse and sexual abuse.

C. Further Proceedings Re: Visitation

In a November 16, 2020, progress hearing report, a social worker advised the juvenile court that the child had been regularly attending individual counseling sessions with the therapist originally assigned to her case in April 2020 and had made “excellent” progress. The child enjoyed her sessions, felt comfortable sharing information, and had “built trust” with her therapist.

On the issue of court-ordered visitation with father, the social worker reported that, despite several attempts and requests for assistance from the Department of Mental Health and the Department’s multidisciplinary assessment team, “no visitation [had] occurred as services as requested by the court are scarce.” The child asked the social worker to inform the court that “she [did] not want to see her father.” The social worker observed the child “cry [and] shake . . . at the thought of or [even the mention of father having] possible future visits with her.”

At the November 16, 2020, progress hearing, the juvenile court sought input from counsel on the lack of visits between the child and father. In response, the child’s counsel explained that the child refused to have any type of visit with father, and that even if the Department had been successful in obtaining a therapist for the weekly visit with father, “it [was] doubtful that [the child] would agree to participate in those visits.”

The juvenile court then ordered “that the Department continue to work with [the child] and her individual therapist closely to encourage her to be open to visits in a therapeutic setting. [¶] . . . [¶] So I am going to order the social worker be the monitor [of] the visit[s] in the therapeutic setting. . . . But the court is fully aware that the minor is in no mental state at the moment to be doing that, and we are not going to force a minor of this age under these circumstances to participate in visits even in a therapeutic setting if she refuses.” The court specifically ordered the Department to document in detail its efforts to work with the therapist to encourage the child to visit and stated that the progress of those efforts would be reviewed at the next hearing.

In a December 30, 2020, last minute information report, a social worker stated that the agencies the Department contacted advised that they would not “provide services to monitor visits with father and [the] child in a therapeutic setting, regardless [of whether] they [were] monitored by [a social worker].” The social worker was also informed that the child’s current therapist “would not be able to be a monitor . . . .” According to the therapist, it was “not appropriate to involve . . . father in [the child’s] treatment.”

The social worker further reported that on November 23, 2020, she arranged a phone call between father and the child monitored by the social worker. Prior to the call, the social worker told the child that if she felt uncomfortable during the call, she could raise her hand and the call would end. At the beginning of the call, the child stated that she was “hot and [her] heart was [racing].” The child appeared nervous and held her teddy bear close. When father asked the child if he could give her a birthday present, she told him to mail it. The child, who appeared to be holding back tears, “suddenly cried” and raised her hand, causing the social worker to end the call. After the call, the child told mother that “‘they [were] making [her] talk to [father] and [she] didn’t want to.’” According to the social worker, the child appeared “unconsolable” and “very distraught.”

On December 4, 2020, the social worker arranged for a second monitored phone call with father during which the child stated, “‘I don’t want to talk with you.’” When father became upset, the social worker told him she would call him back and ended the call. After the call, mother informed the social worker that the child had been exhibiting “unusual behavior,” such as not listening, fighting with her younger sibling, and “being randomly emotional.” The child’s therapist believed her behavior was partially due to the phone calls with father and that the child was “showing signs of regression,” including a dislike of therapy and talking about father.

On December 23, 2020, the social worker arranged for a third monitored call with father during which the child again became upset and told father that she did not want to talk to him. Father later told the social worker that he was upset because he believed the child was being coached by mother, that the child’s sexual abuse allegations were false, and that he would continue to attempt to “see his daughter.”

At the January 4, 2021, progress hearing, the child’s counsel asked the juvenile court to “make a detriment finding as to visits between my client and father. It’s clear from today’s report and from previous reports [that] the child continues to be very traumatized [by] contact with . . . father.” Mother’s counsel joined in the request for a detriment finding, but father’s counsel objected to the request, arguing that “[t]here [was] no [section] 388 [petition] pending [before] the court. That was not something that was noticed for today’s hearing. As the court can see [from] the [last minute information report], . . . father is participating in services.”

In response, the juvenile court addressed the issue of visitation and the merits of the request for a detriment finding: “The court has a responsibility to facilitate visitation with parents when it can be safely done, and so that’s why the court has been trying to make this happen. [¶] And I think the court has gone above and beyond what it normally does in situations where children are reluctant to visit with the parents. [¶] . . . [¶] Look, this is an eight year old. . . . [W]hen in the real world do we force a victim of sexual abuse to sit down and have a conversation against their will with the perpetrator of sexual violence? It’s a little nuts. And so I think the court has done what it can do to meet its obligation under the law to ensure [father] has meaningful visitation with [the child]. [¶] But the reality is she’s just not there, and no one can expect her to be there. . . . [¶] . . . It is clear that the minor is suffering, and it would be detrimental for her to have contact with a sex-offending father. [¶] The court does find that it would be detrimental for her, and I will order there be no further visitation with father until further court order.”

The juvenile court then asked father’s counsel if he had any further argument. Counsel responded by noting his prior objection.

On January 8, 2021, father filed a notice of appeal from the juvenile court’s findings and orders made at the January 4, 2021, hearing, case number B310210.

D. Termination of Jurisdiction and Exit Orders

In a February 5, 2021, status review report, a social worker reported that since the last court hearing the child remained “adamant that she [did] not want to have any contact with her father, [by] phone . . . or in person. The child stated that her previous conversations with father made her uncomfortable and afraid. The child was previously observed by [the social worker] to be extremely fearful and [cried] when forced to talk to her father. The child’s therapist stated it was in the best interest of the child to not have conjoined therapy with . . . father . . . .”

The social worker opined that the child’s “happiness and overall mental health” had improved since “the phone calls with . . . father were stopped by the [juvenile c]ourt.” According to the social worker, “[w]hen the child . . . heard that the [c]ourt stopped the phone calls, she stated, ‘“I am so happy and I feel safe.”’” In the social worker’s opinion, “the visits with . . . father should not resume . . . .” The Department recommended that jurisdiction be terminated with a Family Law order granting sole legal and physical custody to mother and no services or visitation to father.

At the February16, 2021, section 364 judicial review hearing, the child’s counsel joined in the Department’s request to terminate jurisdiction, grant sole legal and physical custody to mother, and order “no visitation for . . . father based on the [juvenile] court’s previous detriment finding.”

Father’s counsel requested joint legal and physical custody of the child, noting that father continued to deny the sustained allegations of sexual abuse. Counsel also noted that father “was not afforded any visitation” and reiterated father’s belief that his phone call with the child was “staged by . . . mother and the Department.” As an alternative to joint custody, father’s counsel requested that father be allowed visitation with the child.

Following argument, the juvenile court found that the conditions that justified the initial assumption of jurisdiction no longer existed and court supervision was no longer necessary. The court terminated jurisdiction and granted mother sole legal and physical custody of the child and no visitation for father. On February 19, 2021, the court filed its custody order. On March 3, 2021, father filed a notice of appeal from the court’s orders of February 16 and 19, 2021.[2]

III. DISCUSSION

A. Due Process/Section 388 Violation

Father contends that the juvenile court’s detriment finding at the January 4, 2021, progress hearing violated his federal and state due process rights because it was made without adequate notice and a meaningful opportunity to be heard. In a related contention, father argues that the finding also violated his statutory rights under section 388 to a duly noticed hearing on the requested change in the visitation order, citing In re Lance V. (2001) 90 Cal.App.4th 668.

1. Legal Principles

“Generally, a parent has due process rights in dependency proceedings. (See David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777 . . . [‘[p]arents have a fundamental liberty interest in the care, custody, and management of their children’].) However, ‘due process “is a flexible concept which depends upon the circumstances and a balancing of various factors.” [Citations.] Even where due process rights are triggered, it must always be determined “what process is due.” [Citation.] . . . [O]ur courts have recognized that “[d]ifferent levels of due process protection apply at different stages of dependency proceedings.”’ (In re A.B. (2014) 230 Cal.App.4th 1420, 1436 . . . .)” In re T.S. (2020) 52 Cal.App.5th 503, 515.)

Section 388, subdivision (a)(1) provides: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child . . . shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction.”

“Section 388 . . . is a general provision to be used by any interested party when circumstances merit an examination of the orders affecting a dependent child other than the periodic reviews prescribed by statute; if the petition is sufficiently compelling, the court is empowered to set an immediate hearing on the matter.” (In re Roger S. (1992) 4 Cal.App.4th 25, 30; see also In re T.S., supra, 52 Cal.App.5th at pp. 513–514.)

Pursuant to section 385, the juvenile court has “the statutory authority . . . to sua sponte change, modify, or set aside a prior order, so long as it provides the parties notice and an opportunity to be heard prior to the modification. [Citations.]” (In re I.S. (2021) 67 Cal.App.5th 918, 931.) Although “[a] statutory mechanism is the preferred means by which to modify a prior order of the court” (In re Nickolas F. (2006) 144 Cal.App.4th 92, 111), the court also has inherent authority under the California Constitution to modify its prior orders under extraordinary circumstances, subject to the notice requirements of due process. (Id. at pp. 116–118.)

Generally, in determining whether to terminate a parent’s right to visitation with a child, the juvenile court is required to make a finding that further visitation would be detrimental to the child. (See In re S.H. (2003) 111 Cal.App.4th 310, 317, fn. 9; In re Manolito (2001) 90 Cal.App.4th 753, 759–760; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)

2. Analysis

The juvenile court’s detriment finding did not violate father’s due process rights. Beginning with the February 20, 2020, detention hearing, when the court ordered that there be no contact between father and the child, and throughout the progress hearings, the juvenile court discussed whether father could have weekly therapeutic visits with the child. And, when, on June 2, 2020, the court ordered that father could have monitored visitation with the child, it limited such visitation to a therapeutic setting with the child’s treating therapist and only when the therapist deemed such contact appropriate. In other words, father’s right to visitation, if any, was always conditioned on evidence that such contact would not be harmful to the child. It was in this context that the juvenile court and the parties reviewed yet again the visitation order on January 4, 2021. Confronted with clear evidence that even minimal contact with father frightened the child, caused her to misbehave at home, and resulted in regression during therapy, the court concluded that further efforts at compelling visitation at that time would not only be futile, but detrimental to the child. And, the court provided father an opportunity to be heard on whether visitation would be detrimental to the child. Father’s counsel noted his notice objection, but did not request a continuance or otherwise argue that father would be prejudiced by the court considering detriment to the child on that date. Instead, counsel repeated father’s denial of the sexual abuse and suggested that mother was responsible for the child’s refusal to visit.

On this record, the juvenile court’s detriment finding was not, as father suggests, a matter that was beyond contemplation before the hearing. To the contrary, when the progress hearings on the visitation issue are reviewed in sequence, it should have been apparent to father that the prospect of any meaningful visitation occurring was in serious doubt by at least the November 2020, hearing and that any expectation that visits could be facilitated without causing trauma to the child became unrealistic after the failed telephonic visits and the child’s emotional reaction to them in November and December. Thus, the court provided father with adequate notice that visitation in a therapeutic setting may not occur. It also provided father with an opportunity to be heard on this issue, after which it weighed the child’s best interest, including her interest in being free from the risk of harm posed by even minimal contact with father, against father’s interest in parenting the child in light of his sexual abuse of her.

Nor are we persuaded by father’s contention that the juvenile court’s order violated section 388. Contrary to father’s assertion, a formal noticed motion by an interested party under section 388 for a change in the visitation order was not necessary. Rather, the court was authorized under section 385 to modify its initial visitation order, so long as it provided father with adequate notice and an opportunity to be heard, which we conclude above it did.

Father’s reliance on In re Lance V., supra, 90 Cal.App.4th 668 is misplaced. Here, unlike in that case, father had notice, by at least the November review hearing, that (1) the child had consistently refused to visit with him and even the mention of visitation caused her to be upset; (2) the court was not going to force the child to visit against her will; and (3) the court’s visitation order would therefore be under review at the scheduled January hearing and might be changed. Moreover, unlike the mother in In re Lance V., father did not attempt to introduce any evidence or make arguments about visitation that the juvenile court refused to hear.

B. Sufficiency of Evidence Supporting No Visitation Order

Father next challenges the sufficiency of the evidence supporting the no visitation order. “The juvenile court’s detriment finding is reviewed under the substantial evidence standard. [Citations.] . . . [¶] ‘Detriment is a familiar standard in child welfare determinations; but, as several courts have acknowledged, the notion of detriment is at best a nebulous standard that depends on the context of the inquiry. . . . It cannot mean merely that the parent in question is less than ideal . . . . Rather, the risk of detriment must be substantial, such that [the proposed action] represents some danger to the child's physical or emotional well-being.’ (In re C.C. (2009) 172 Cal.App.4th 1481, 1490 . . . .)” (In re A.J. (2015) 239 Cal.App.4th 154, 160.)

“The underpinnings of a finding of detriment should also reflect the particular statutory context in which the finding is made. . . . In an appropriate case, all that might be required is a finding such a placement would impair the emotional security of the child. (Cf. In re Jacob P. (2007) 157 Cal.App.4th 819, 829 . . . [‘“The two standards [best interest and detriment] are basically two sides of the same coin. What is in the best interests of the child is essentially the same as that which is not detrimental to the child[ ]”’].)” (In re C.C. (2009) 172 Cal.App.4th 1481, 1490–1491.)

According to father, because therapeutic visitation with a new therapist was never tried, there was no evidence to support an inference that it would be detrimental to the child. Father’s argument ignores the reasonable inference to be drawn from the evidence that even the mention of therapy with father caused the child to be upset and that brief phone contact with him caused her to suffer visible emotional distress. In light of that evidence, it is speculative to infer that forced therapeutic visitation with father—using a therapist the child did not know and in whom she had no trust and confidence—could have conferred a potential benefit that outweighed the risk of detriment from contact with father. There was ample and consistent evidence that visitation with father was not, as of January 2012, in the child’s best interest.

C. Impairment of Parental Rights

Father also contends that the termination of visitation will shift to him the burden of bringing a section 388 petition to have visits reinstated, a procedurally unfair result that warrants reversal of the order terminating visitation. But father’s argument is predicated on his contention that the termination of visitation without formal notice was error, a contention we have already rejected.

D. Least Restrictive Means

Father next asserts that the no-visits order suffers from another constitutional defect, i.e., it was not the least restrictive means by which to safeguard the child’s best interests, citing, among other cases, H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 1142. As father views the evidence, it was the phone contact with him outside the therapeutic setting in November and December 2020 that caused the child emotional distress; therefore, the juvenile court should have terminated that type of contact, but left the therapeutic visitation order in place. Father ignores that it was his sexual abuse of the child that caused her distress. The court eventually concluded that given this sexual abuse, father’s continued denial of it, and the child’s continuing trauma as a result of it, any visitation with father was not in her best interest. We find no error.

E. Exit Order

In his companion appeal from the juvenile court’s order terminating jurisdiction, denying visitation, and granting mother sole legal and physical custody, father contends that the visitation portion of that order must be summarily reversed if we reverse the prior no-visitation order entered on January 4, 2021. Because we have affirmed that prior order, we also affirm that portion of the exit order denying father visitation with the child.

F. Sole Legal Custody

Father concedes there was sufficient evidence to support the juvenile court’s order granting mother sole physical custody, but nevertheless contends that the juvenile court abused its discretion when it also granted mother full legal custody of the child. According to father, there was nothing in the record to support an inference that he had not participated in decisions regarding the child’s education or medical treatment or that he would not do so in the future.

“‘When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make “exit orders” regarding custody and visitation. [Citations.] Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court. [Citation.]’ [Citation.]” (In re A.C. (2011) 197 Cal.App.4th 796, 799.) In issuing an exit order under section 362.4, the juvenile court’s goal in assigning custody is to serve “the best interests of the child.” (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712; In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.)

“We normally review the juvenile court’s decision . . . to issue a custody (or ‘exit’) order pursuant to section 362.4 for abuse of discretion . . . .” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)

When considering custody at termination of jurisdiction, the juvenile court had broad discretion to fashion orders that served the best interests of the child. Here, the record showed not only that father had sexually abused the child, but that he denied such abuse and the effects of his actions on her. It also showed that father had an unresolved history of alcohol abuse. Given this evidence, the court did not abuse its discretion by finding that it would not be in the child’s best interests to allow father to participate in decisions concerning the health, well-being, or education of the child.

IV. DISPOSITION

The orders denying father visitation and granting mother sole physical and legal custody are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.

[1] All further statutory references are to the Welfare and Institutions Code.

[2] Minor’s counsel argues that father’s first appeal from the juvenile court’s January 4, 2021, no visitation order is moot based on the court’s subsequent exit order regarding visitation. We disagree because the court expressly relied upon its January 4, 2021, detriment finding when making its subsequent exit order denying father visitation. (In re D.N. (2020) 56 Cal.App.5th 741, 757–758 [prior detriment finding not moot if it infects the outcome of subsequent proceedings].)