Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County No. CK62454, Marilyn K. Martinez, Referee.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Phillip O., father of 14-year-old S. O. appeals from the order of the juvenile court terminating its jurisdiction (Welf. & Inst. Code, § 364) over S., giving full legal and physical custody to her mother, and denying father any contact with S. We conclude that the juvenile court did not abuse its discretion. Accordingly, we affirm the order.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
This case has already been before this court. We filed an opinion on December 21, 2007, and refer to that opinion for the background facts:
Accordingly, we grant the applications of both father and the Department to take judicial notice of the file in this case along with the briefs and our opinion in that earlier appeal.
In the decree of divorce, father and mother, Melissa F., shared physical custody of S. Mother and father’s marriage was marked by domestic violence. (Opn. at p. 2.) Also, father has a history of arrests for inflicting corporal injury to a spouse (Pen. Code, § 273.5) and he once took S. to Oklahoma where he accused mother of abandoning the child.
The juvenile court declared S. a dependent of the court in the fall of 2006, based on findings that since S. started in middle school, father spanked her regularly during the child’s stay with him. (Opn. at p. 3.) The court found true the allegations that S “ ‘was excessively disciplined by her father . . . including but not limited to the father slapping the child [in] the face . . . [and] excessively spanked the child on the buttocks occasionally resulting in bruises to the child’s body.’ ” The court also found true that “ ‘such discipline to the child was excessive and caused the child unreasonable pain and suffering . . . [and] endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm.’ ” (Id. at pp. 6-7.) In making these findings, the court specifically stated that father’s spanking “ ‘crossed the line of being reasonable’ ” and “ ‘caused the child to [become extremely fearful] of . . . father, such that she would spontaneously cry during visits.’ ” (Id. at p. 7.) The court removed S. from father’s custody and placed her with mother. (§ 361, subd. (c).) (Opn. at p. 7.)
At the disposition hearing, the juvenile court had before it the court-ordered psychological evaluation that showed that S. “ ‘expressed a great amount of distress’ about the fact that father frequently spanked her, . . . and ‘[i]t also appears that S[.] prefers to reside in her mother’s home and feels guilty that she does not want to live with her father.’ ” (Opn. at p. 4.) The psychologist opined that “ ‘S[.] has been at least excessively disciplined, if not physically abused by her father, and as a result of this and other issues, she is genuinely fearful of him.’ ” (Ibid.)
The juvenile court also had the reports filed by the Department of Children and Family Services (the Department), which showed that father and S. had several unsuccessful visits in March and April 2006. Unwilling to participate, S. “ ‘became visibly emotional and extremely tearful.’ ” (Opn. at p. 5.) Twice the visits ended early “because of S.’s emotional state.” (Ibid.) S. cried during visits and by mid-April, she was resolute in her aversion to visits with father. (Ibid.) Finally, in mid-April 2006, S.’s extreme distress and crying prompted the juvenile court to find that “ ‘S[.] needs to have an opportunity to establish rapport with a therapist. I think interjecting a visitation with her father . . . would not be conducive to establishing rapport, a comfort level with her therapist.’ ” Accordingly, the court discontinued visits between father and S. “until the following hearing because they were not in the child’s best interest.” (Ibid.)
As its disposition order, the juvenile court ordered father to participate in (1) individual therapy to address anger management issues, (2) parenting classes, and to attend (3) a Parents Beyond Conflict class. More important, the court ruled that father would have no visits pending further order. “Once father verified substantial progress in counseling, the court would be open to modifying the order.” (Opn. at p. 7.)
In our previous opinion, we held that the juvenile court did not abuse its discretion in ordering no visitation for the time being because visits caused S. “extreme and palpable distress before, during, and afterwards,” such that they had to be terminated within minutes of starting. S.’s constant crying and anguish are abundant evidence that continued contact with father was harmful to S., causing her obvious adverse psychological effects. [Citations.]” (Opn. at p. 8.) Nonetheless, we observed that the court repeatedly stated it would re-examine the visitation order, and did so thrice. (Opn. at pp. 8-9.)
In the months following the juvenile court’s disposition order, the Department reported that S. was doing well in mother’s care. Mother ensured that S. attended therapy regularly. After being in therapy for a year, S. seemed to have more control of her emotions. She was sweet and respectful of others, socialized with friends, and appeared to be comfortable with herself. She preferred not to have contact with father, stating to her psychologist that she had only two fond memories of him.
In marked contrast were S.’s feelings about father, however. S.’s therapist explained “[r]ecently Miss O[.] has been expressing a significant [amount] of fear and anxiety due to recently spotting her father outside her new and unlisted residence. She became extremely nervous and has been hypervigilent and fearful that her father will ‘take me away.’ Due to her fears regarding her father, Miss O[.] has had difficulty sleeping and concentrating at school . . . [and has been] jumping at every noise she hears.” The therapist hoped that the court would consider S.’s feelings and opinions about contact with father. “It would not be in S[.]’s best interest to have a relationship with her Father pushed upon her at a point because S[.] is not ready for a relationship with her Father.” The Department reported that S. “has not seen her Father since the onset of this court case and does not seem to be bothered by the fact that he hasn’t beg[u]n to have monitored visitation.”
As for father, despite receiving referrals twice, he did not comply with court orders and furnished no proof of completion for any court-ordered program. He remained uncooperative and hostile to the dependency process and “refuse[d] to cooperat[e] with DCFS[] for updates.” Father refused to speak to the social worker and requested that contact with him be made through his attorney. Still, father did not respond to the Department’s letters.
Father provided no verification that he had participated in services by the hearing on April 30, 2007. His attorney represented to the court that father was scheduled to complete Parents Beyond Conflict and that he had been in treatment with a therapist dealing with case issues. The juvenile court explained that the reason the court-ordered conjoint counseling between father and S. had never commenced was that “I have not authorized it to be started because I have found that it’s not appropriate because [father] has never verified any of his compliance or any progress. And until he verifies that he’s made substantial progress, conjoint counseling will not occur.”
Father completed “Parents Beyond Conflict” in May 2007. He also presented a letter from a therapist indicating that although father had been in psychiatric treatment since May 1997 and had been on antidepressant medication since June 2006, he had not been seen by his psychiatrist very often. The therapist’s letter clarified that, as of the time this family came to the Department’s attention, father had seen his doctor nine times in 2006 and four times in 2007, not including some “severe emergency phone calls” when this case commenced. The therapist noted that he had met with S. two to three times between 2003 and 2005, i.e., before this case commenced. The therapist noted that S. clearly felt safe and happy with father and “clearly trusted him” back then. In therapy, father was “looking at things he could do differently in his relationship with his daughter. This is limited by the total lack of contact between them. . . . He acknowledges only light hitting to her buttocks.” (Italics added.) Apart from mother’s “allegations,” the therapist observed, father had no history of violence. The therapist observed that father had evolved to the point where he agreed that no physical punishment, even mild, “is to be allowed between parent and child. He does acknowledge slapping his daughter on her buttocks occasionally when unruly but reported their relationship was loving, his daughter always glad to see him when he would visit . . . .” Father’s therapist recommended continued psychotherapy as father could afford, and continued psychotropic medication for the foreseeable future.
In its response, the Department observed that father’s therapist had not seen father on a weekly basis as is required by the Department when parents are ordered into therapy. Further, as evidenced by father’s own words, the Department noted, the therapy did not “go into depth about the anger management issues that surround this case.” In the seven months since the court made this disposition order, father had not provided the Department with certificates for a parenting class, or a letter showing he was in weekly individual therapy where he addressed anger management.
The contested hearing held on June 13, 2007 was to address whether the juvenile court should terminate jurisdiction. (§ 364.) Father testified that he had not completed parenting-class requirement of his case plan because, although he received referrals from the Department, there were none near where he lived. He would attend if a class were available near his house. He wanted conjoint therapy with S. because he wanted a relationship with her. Father explained that he had refused to communicate directly with the Department because his statements were being taken out of context or things were omitted. He insisted that S. had been coached by her mother to make the allegations in the petition. Father explained that he had discussed “discipline issues” with his therapist. In particular, he had discussed “methods, what I could do to help with her homework, what I could do to help her with her . . . problems with her mom . . . .” He admitted that he had told his therapist that he spanked S. “occasionally, but normally, it’s [sic] a last resort.”
S.’s counsel joined with the Department in asking the juvenile court to terminate jurisdiction with a Family Law order giving mother full custody and no contact with father because contact would be detrimental to the child. Father opposed terminating jurisdiction. He had had no contact with S. for 14 months.
The juvenile court explained that mother was in full compliance with the court’s orders and was taking very good care of S. Under mother’s care, S. was neither at risk nor in need of supervision. The court added that S. continues to need therapy.
As for father, the juvenile court found by a preponderance of the evidence that return of S. to father’s custody would create a substantial risk of detriment to S.’s well-being. Father was not in substantial compliance with the court’s orders. Of the three elements of the case plan, father had completed one, had not participated in another, and although he had been attending therapy, the court found it had not addressed the issues that brought S. into court. In short, the court found that father “has not taken an iota of responsibility for his conduct which brought his child before this court. He continues to blame others” but does not recognize “that his daughter made very specific statements about the physical abuse.” The court found father had “not made any substantial progress in addressing the case issues in individual counseling.” Father walked out of the courtroom while the court was making its orders. The court terminated its jurisdiction, gave full legal and physical custody to mother, and ordered no visitation for father, pending further order of the court.
CONTENTIONS
Although obscure, it appears that father’s contention is that the court erred in terminating its jurisdiction and in fashioning exit orders that deny father any contact with S.
DISCUSSION
Where, as here, a child is not removed from his or her parent’s physical custody, section 364 applies. (In re N. S. (2002) 97 Cal.App.4th 167, 171 [section 364 applied where child removed from both parents’ custody and placed in mother’s custody].)
Under section 364, subdivision (c), “After hearing . . . the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.”
“The purpose of dependency law is ‘to provide for the protection and safety of . . . each minor under the jurisdiction of the juvenile court . . . .’ (§ 202, subd. (a).) ‘ “The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time.” ’ [Citations.]” (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095.)
“If the child has not been removed from the physical custody of his or her parent, the court must schedule a review hearing pursuant to section 364 to be held within six months of the date of the declaration of dependency and every six months thereafter. [Citations.] At the hearing the issue before the court is ‘whether continued supervision is necessary.’ [Citations.] Termination of dependency jurisdiction is required unless the Department establishes the conditions still exist that would justify the court taking jurisdiction of the child or such conditions would exist if jurisdiction were terminated. [Citations.] If dependency jurisdiction is continued, the court must order continued services and set a further review hearing pursuant to section 364 to be held within six months. [Citation.] This review process is repeated until the court terminates jurisdiction. [Citations.]” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303-304, italics added, fns. omitted.)
Here, the record supports the juvenile court’s finding that continued supervision was not necessary. (§ 364, subd. (c); In re N. S., supra, 97 Cal.App.4th at p. 172 [reviewing record for sufficiency of the evidence to support the finding that conditions still existed].) S. had markedly improved in mother’s care. She was developing into a sweet, respectful, social, child who appeared to be comfortable with herself. Mother was seeing to all of S.’s needs, including therapy, to the point where the Department found that mother put S.’s needs over her own. Through therapy, S. had developed more control over her emotions. Clearly, mother is now able to protect S. and so the purpose of the dependency, namely, “to provide for the protection and safety” of S. (§ 202) has been achieved.
Father argues that conditions still existed that would justify the original order taking jurisdiction. He relies on the clause in section 364, subdivision (c) that “[f]ailure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.” He cites to his failure to take parenting classes, and the court’s finding that father had not addressed case issues in his psychiatric treatment, as prima facie evidence that conditions still existed to justify maintaining jurisdiction.
However, such evidence is of prima facie value only, and as noted, the court’s finding is upheld if there is substantial evidence to support it. “ ‘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 [in the evidence and in reasonable inferences from the evidence] 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 Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) Although the court had prima facie evidence that father had not fully addressed the issues that led to the dependency, it also had evidence of S.’s stability in that she was being fully protected in mother’s care. On balance, the evidence supported the court’s finding that conditions did not still exist justifying the jurisdiction because S. was no longer at risk of harm. Therefore, the juvenile court was required by section 364, subdivision (c) to terminate jurisdiction. (See Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 304.)
Turning to the visitation issue, father contends that the court erred in ordering that he have no contact with S. as part of the exit orders. We disagree.
“A court must consider the totality of the child’s circumstances when making decisions regarding the child. [Citation.] Orders regarding visitation may be reversed only upon a clear showing of an abuse of discretion. [Citation.] ‘ “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” [Citation.]’ [Citations.]” (In re Alexandria M., supra, 156 Cal.App.4th at pp. 1095-1096.)
Preliminarily, we have already reviewed the juvenile court’s no-visitation order and held that the order was an exercise of discretion. In our earlier opinion, we held that visits with father caused S. “extreme and palpable distress” and that “S.’s constant crying and anguish [before, during, and after visits] are abundant evidence that continued contact with father was harmful to S., causing her obvious adverse psychological effects. [Citations.]” (Opn. at p. 8.) We also observed that the court was “responsive to father’s rights and concerns” that a parent has a constitutionally-protected right to bring up children (see In re Julie M. (1999) 69 Cal.App.4th 41, 49), because it repeatedly promised and did revisit the question. (Opn. at pp. 8-9.) We will not second guess that analysis.
The record supports the juvenile court’s conclusion that since it made the no-visitation order, father has not made the necessary progress such that it would be appropriate for S. to resume visits. Father still has not acknowledged, even to his psychiatrist, his own conduct, calling it “only light hitting to [S.’s] buttocks” and ignores the palpable effect his physical abuse of S. has had on this child. Father is aware that all he needs to do to regain contact with S. and to have conjoint counseling with her is to undergo therapy and make satisfactory progress. The juvenile court reminded father repeatedly of that fact. Father’s failure to make this satisfactory progress or to demonstrate any progress justifies the no-contact provision in the exit orders.
Looking at the court’s ruling as a whole, the visitation portion is inextricably intertwined with the termination portion. In In re Chantal S. (1996) 13 Cal.4th 196, the juvenile court ordered counseling as a condition to father’s visits with his child. The Supreme Court affirmed the exit order stating, inter alia: “The juvenile court’s determination, that continuation of dependency was at that time unnecessary for Chantal’s protection, was in turn premised on the existence of the court’s custody and visitation order. The juvenile court did not find that Chantal would not need protection if father had unconditional visitation rights or joint legal or physical custody. To the contrary, the juvenile court’s order reveals clear continuing concerns about father’s effect, even in supervised visits, on Chantal’s well being. [Citation.] [¶] Under father’s reasoning, in order to impose counseling conditions on his visitation rights, the juvenile court would be required to force Chantal and her mother to remain indefinitely in the juvenile court dependency system. As the present case illustrates, however, there are situations in which a juvenile court may reasonably determine that continued supervision of the minor as a dependent child is not necessary for the child’s protection, and at the same time conclude that conditions on visitation are necessary to minimize, if not eliminate, the danger that visits might subject the minor to the same risk of physical abuse or emotional harm that previously led to the dependency adjudication. In such a situation, sections 362.4 and 362[, subdivision ](c) authorize the juvenile court to issue an appropriate protective order conditioning custody or visitation on a parent’s participation in a counseling program.” (Id. at p. 204.)
So it is here. The juvenile court clearly had concerns about father’s effect on S.’s well-being until he had made actual progress in therapy in addressing his physical abuse of S. The court’s ruling that it was unnecessary to continue the dependency was premised on the existence of the court’s custody and visitation order. S. does not require protection provided the conditions of the exit orders persist. Manifestly, the court did not abuse its discretion here. Father always has the option of seeking a change in the visitation portion of the exit order in the superior court (§ 362.4), once he has taken steps to ameliorate the problem.
Section 362.4, paragraph 2, reads in relevant part: “Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court. The order of the juvenile court shall be filed in the proceeding for nullity, dissolution, or legal separation, or in the proceeding to establish paternity, at the time the juvenile court terminates its jurisdiction over the minor, and shall become a part thereof.”
DISPOSITION
The order is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.