Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. Nos. 2655DEP, 2656DEP
Jones, P.J.
In early 2008, the Sonoma County Department of Children and Family Services (the Department) filed two Welfare and Institutions Code section 388 petitions asking the juvenile court to terminate Sa.Z.’s, (father) visitation with S.Z. (daughter) and Si.Z (son). Father filed his own section 388 petition requesting visitation. The juvenile court granted the Department’s petitions, denied father’s petitions, and terminated visitation.
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code. Mother is not a party to this appeal and is mentioned only where relevant to the issues raised in father’s appeal. (In re V.F. (2007) 157 Cal.App.4th 962, 966, fn. 2.)
Father appeals. First, he contends there was insufficient evidence at the jurisdictional hearing to support a finding of jurisdiction. Second, he argues the court violated his due process rights at the section 388 hearing by declining to appoint an additional therapist “to evaluate whether visits should take place.”
We disagree, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case has an extensive history. In June 2007, daughter and son were removed from mother’s custody. Following a jurisdictional hearing, the juvenile court concluded that the children came within section 300, subdivision (c). The court also determined that the children should be removed from “their parents’ physical custody.” Father appealed.
In an unpublished decision, we discussed in detail the facts and proceedings through the court’s jurisdictional and dispositional orders. (In re Savannah Z. (July 28, 2008, A119217) [nonpub. opn.].) We affirmed the lower court’s finding of jurisdiction, but reversed the dispositional order. We concluded that father was a noncustodial parent and, as a result, the court should have proceeded under section 361.2, subdivision (a). We therefore remanded the case to the juvenile court to consider and make findings regarding the issue of placement pursuant to section 361.2.
The Parties’ Section 388 Petitions
We recite only those facts relevant to father’s appeal of the denial of his section 388 petitions and the termination of his visitation.
Father received visitation with both children following the dispositional hearing. In late October 2007, the Department temporarily suspended his visitation with both children. In a letter submitted to the court, the Department stated that father had: (1) missed four visits; (2) arrived late to, and left early from, other visits; (3) smelled of beer and alcohol during at least one visit; (3) informed the children’s social worker that he would not visit the children without his girlfriend present; and (4) refused to sign his case plan. Father’s visits with the children resumed in November 2007 but were suspended later that month. His visits resumed in December 2007 but were suspended again in January 2008.
In February 2008, the Department filed a request to change court order (form JV-180, commonly referred to as a section 388 petition) pertaining to father’s visitation with daughter. The Department filed a second section 388 petition pertaining to father’s visitation with son. In the section 388 petition pertaining to daughter, the Department “request[ed] that visits with father be terminated and that the Court find that visits with father are detrimental to the [daughter].” The Department noted that daughter’s “therapist has concluded [that] visits with father are traumatic and detrimental to [daughter] and should be terminated.”
In support of the petition pertaining to daughter, the Department submitted a December 10, 2007 letter written by Dr. Barbara Prosniewski, daughter’s therapist. In the letter, Prosniewski “express[ed] [her] support of an indefinite suspension of contact between [daughter] and her father.” Prosniewski acknowledged that allegations of sexual abuse of daughter had been “‘unsubstantiated’” but explained that daughter had reported that father “hurt her in her ‘private’ areas’” in June 2007 and that daughter reacted badly to father’s visits.
At the jurisdictional hearing, the court struck the Department’s section 300, subdivision (d) allegation that father sexually abused daughter.
The letter described one incident where daughter “exhibited violent behavior, such as biting other children” after a visit with father. It also noted that daughter, after a visit with father, “had 2 nightmares in one night where she woke up screaming and shaking ‘with her hands pushing down on her legs and with her right arm pushing away her left forearm.’ . . . [I]t seemed as if she were pushing something away. Apparently it took hours for her to calm down.” The letter described a third incident which occurred after a visit with father where daughter hit “‘. . . herself with her fingers pointing inward toward her private parts. . . .’”
Finally, the letter noted that daughter and son’s foster parents reported that daughter exhibited “frequent sexualized behavior, particularly with her 2 year old brother [ ], e.g. pushing his face into her crotch, having him touch her in her crotch area, and tongue kissing him. She has seemingly purposely rubbed the breasts of another visiting foster mother” and “smiles upon the initiating of these behaviors.” Prosniewski characterized daughter’s behavior as “a problem” and concluded that her “visitation with the, apparently alleged, perpetrator of her sexual abuse is re-traumatizing her and these visits need to be stopped.”
The Department’s second section 388 petition sought to terminate father’s visits with son. That petition attached a February 7, 2008 letter written by Dr. Prosniewski recommending that son’s visits with father be suspended because “visits with [father] are too hard for [son] to handle.” In the letter, Dr. Prosniewski explained that son displayed “aggressive behaviors” towards daughter, adults, and the family dog after visits with father.
Father filed his own section 388 petitions regarding visitation. He claimed that the “children enjoyed the visits” with him and that he “was appropriate during the visits.” According to father, a “parent educator (Judith Cain) observed a visit, and said that [he] was doing fine with the children.” Father also requested “that another therapist or psychologist be appointed by the court to evaluate the children.” He contended that daughter’s therapist “does not know the full history of [daughter’s] care” and has “preconceptions” about him “that make it impossible for her to make a neutral evaluation and recommendation about visitation.” Father’s petitions were not supported by any evidence.
The Section 388 Hearing and the Court’s Order
The court held a hearing on the section 388 petitions in late February 2008. Daughter and son’s social worker, Charity Doronila, testified for the Department. She stated that she was requesting that father’s visits with his children be terminated. She described the history of father’s visits with the children and stated that father’s visits were suspended several times, first in October 2007 because he “missed several visits. He refused to visit the children since his girlfriend could not visit with him. He yelled at staff at California Parenting Institute in the presence of the minors.” Doronila also noted that daughter said that father “smelled like beer. And the supervisor from the California institute stated [that] there were several visits where [father] smelled of marijuana.”
Father’s visits resumed in November 2007, but were suspended shortly thereafter when he lifted daughter and son’s clothes “and repeatedly question[ed] if they were being beaten.” Doronila testified that she asked father to stop this behavior and, after arguing for approximately 10 minutes, father agreed. Father, however, continued to ask daughter and son whether they were being hurt, and the Department again suspended visitation.
Father’s visits resumed in December 2007. At that time, the Department limited father’s visits with daughter to once per week. In early January 2008, however, the Department suspended father’s visits with daughter after it received information that daughter had told her foster mother that father had abused her. The Department also suspended father’s visits with son. Doronila testified that her recommendation to terminate father’s visits with the children was based, in part, on Dr. Prosniewski’s recommendations.
Doronila also stated that she considered input from the children’s foster parents. Daughter’s foster parents told Doronila that daughter “would have difficulties before the visits; for example, several minutes before her visit with her father . . . she wouldn’t unbuckle her seatbelt, which she usually does. She would pick on her skin to where she would actually cut herself, or if the foster mother told her to stop, she would try to do it on her hands so it wouldn’t be as visible.” She also noted that daughter had nightmares. Son’s foster parents told the social worker that “after the visits, he would try to clinch the foster mother or [the] adult’s hands near to the nerves, and he would be aggressive towards his sister and the family dog . . . where he’s grabbing . . . his sister’s neck and her arm as well.”
Doronila further testified that she had received a report from daughter’s foster parents that daughter had reported that father had sexually abused her. The social worker explained that on daughter’s fourth birthday — and after a visit with father — daughter told her foster mother that “her potty hurt and it was bleeding.” Daughter explained that “her dad hurt her potty really, really bad” a “long time ago.”
Finally, Doronila testified that the children’s behavior improved after father’s visits were temporarily suspended: daughter stopped having nightmares and son’s behavior had “been a lot better since the suspension of [father’s] visits.” The social worker concluded that there was a correlation between father’s visits and the children’s behavior.
The children’s foster mother, Barbie T., also testified for the Department. She described the particular behaviors daughter exhibited before and after her visits with father. Before daughter’s visits with father, daughter “would start hurting herself by scratching her face, picking at her hands, causing open wounds on both areas.” She would get “fidgety and nervous” and before leaving the car to go to the visit, “she would hold her hands on her lap and push down and just be withdrawn and look out the window, which is unusual for her.”
After the visits, daughter “would either get aggressive, she would get her dolls . . . take the panties off the dolls and poke at their private areas. She’ll either grab at a toy and pound on it. Even at her brother, sometimes she’ll get aggressive at him[.]” Daughter also acted sexually toward son following a visit with father; Barbie T. explained that daughter pulled son “down into her groin area” and held him there. Daughter also experienced two nightmares per night — where she pushed down on her legs, crying and screaming — after she visited with father. After having these nightmares, daughter would be inconsolable. Daughter’s nightmares stopped when her visits with father were suspended.
Daughter’s behavior improved after father’s visits were suspended: she no longer “act[ed] out” and no longer hurt herself. Her sexual behavior toward son ceased, and she acted more like a sister to him “instead of trying to hurt him[.]” She was “more relaxed;” she no longer “pick[ed] at herself. She’s able to play like a little girl with the doll and toys. She’s gotten better with playing with toys [and] not trying to hurt them or break them[.]” Son’s behavior improved, too. After visits with father were suspended, son no longer attempted to choke others. Barbie T. described son as “a little cutie. He’s really calm. His demeanor has changed. He’s not as aggressive. . . . He has learned not to [ ] squeeze our arms [ ] like he’s trying to [ ] cut circulation off. . . .” Barbie T. noted that neither daughter nor son expressed a desire to see father after visits were suspended.
Dr. Prosniewski testified for the Department. Like Doronila, she stated that she recommended terminating father’s visits with son and daughter. She stated that she became daughter’s therapist in September 2007 and that she prepared two letter reports (one dated Dec. 10, 2007, and another dated Feb. 8, 2008) recommending that father’s visits with the children be terminated. She testified that she based her opinion on her observation of daughter, and on her conversations with the children’s foster parents. Prosniewski explained that “both sets of foster parents have noticed [ ] a dramatic change in [daughter’s] behavior after visits and sometimes before anticipated visits with the dad.” The type of behavior exhibited by daughter are “nightmares; sexualized behaviors where she is kind of rubbing her crotch, she has been telling her family . . . she’s bleeding basically from the vaginal area, from down in her private parts; waking up with nightmares. She has had . . . some violent behaviors at school . . .”
The court admitted both letters into evidence without objection.
Prosniewski noted that daughter rarely spoke about her visits with father and “[t]he fact that she’s not saying anything is very significant. She can’t say those things apparently or whatever it is that she’s so frightened of speaking; or [she] may not just even want to go there. The sense that I have when I see her in therapy; it’s just — it’s too scary, too painful . . . to go there.” Prosniewski explained that her main concern for daughter “is that she’s getting traumatized, or it seems as if she’s getting traumatized, every time she sees her dad. And she is showing it in the only way that she can show it really, [ ] by her behaviors. She has exhibited self-abusive behaviors as well as she’s been scratching herself, poking herself in school with a pen.”
On cross-examination, Prosniewski conceded that her conclusions regarding son — that he was afraid of father — were based on what had been reported to her by son’s foster mother. She explained, however, that “[c]hildren are not verbal. They have behaviors. They show their feelings in their behaviors. And if a child is becoming more aggressive as a result of a contact with somebody, then that tells you something. . . . And what it tells you is that contact is too scary. And whether there is a lessening of the contact or no contact and the child is calming down, then that tells you something.”
Father did not present any evidence at the hearing. During closing argument, counsel for father argued that the evidence was insufficient to support a finding that father’s visitation was detrimental to the children. Counsel concluded his argument with the following comments: “So I think that what the Court should do is order visitation as it was before. The visits were supervised and would be supervised to make sure there’s not any misconduct by father. I think if the Court has concerns, that an independent expert should be appointed to evaluate not just the children but also the parents and make a determination based on that full evaluation as to whether visits are appropriate or detrimental.”
At the conclusion of the hearing, the court granted the Department’s section 388 petitions regarding daughter and son. The court denied father’s section 388 petitions. The court concluded that “visitation with [f]ather is detrimental to both minors, and all contact with [f]ather is stopped.” The court did not respond to father’s comment about the appointment of an “independent expert.”
DISCUSSION
Father’s Argument Regarding Jurisdiction is Moot
In his opening brief, father “reassert[ed]” the argument he made in his previous appeal: that there was insufficient evidence to support the court’s finding that daughter and son were minors described by section 300, subdivision (c). In response, the Department contended that our prior opinion — where we concluded that substantial evidence supported the court’s jurisdictional finding — rendered father’s argument moot. In a supplemental brief, father agreed.
A juvenile court may adjudge a minor to be a dependent of the court pursuant to section 300, subdivision (c) when “[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian. . . .”
Father’s Due Process Claim Fails
Although father’s argument is somewhat difficult to follow, he seems to contend that the order granting the Department’s section 388 petitions and denying his section 388 petitions should be reversed because the juvenile court violated his “due process rights when it refused his request to appoint a different therapist or psychologist to evaluate whether visits should take place.”
The Department argues that father’s argument is foreclosed because his notice of appeal “makes no reference to the juvenile court’s declination of his request for appointment of a psychologist.” We are not persuaded. Father’s notice of appeal states that he is appealing from the February 26, 2008 order “Denying visitation to Father.” California Rules of Court, rule 8.100(a)(2) provides that “[t]he notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed.” In accordance with this rule, father was not required to refer to the denial of his request for an appointment of a psychologist in his notice of appeal to preserve that issue on appeal. (See, e.g., In re Madison W. (2006) 141 Cal.App.4th 1447, 1450-1451.)
Distilled to its essence, father’s argument seems to be that Dr. Prosniewski was biased against him, and that this purported bias somehow prevented him from properly presenting his case. To support his argument, father relies on several cases, none of which assist him. There is simply “no requirement that the juvenile court afford a parent a psychological expert of his or her choice, with permission to separately evaluate the child and present opinion testimony.” (10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 577, pp. 700-702, citing In re Walter E. (1992) 13 Cal.App.4th 125, 135 (Walter E.); see also In re Daniel C. H. (1990) 220 Cal.App.3d 814, 835.)
In Walter E., the appellate court rejected an argument identical to the one father makes here. There, the mother claimed that the juvenile court violated her due process rights by refusing to appoint a second therapist of her own choosing to examine her son and testify as to his best interests. (Walter E., supra, 13 Cal.App.4th at p. 128.) The court identified four factors courts consider to analyze a due process claim: “(1) the private interest that the official action will affect; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the dignity interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible governmental official; and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Citations.]” (Id. at p. 137.)
After considering these factors, the Walter E. court concluded that due process did not require the court to appoint a second psychologist. With regard to the second factor, the court determined that the mother could not demonstrate that the denial of her request for a second expert “actually prejudiced her ability to present her case or posed any significant risk of erroneous deprivation of her custodial rights.” (Walter E., supra, 13 Cal.App.4th at p. 138.) The court also noted that there was no evidence that the department’s expert was biased, and explained that mother retained the right to cross-examine the expert. (Ibid.)
The same is true here. Father has failed to demonstrate how the denial of his request for a second therapist actually prejudiced his ability to present his case or posed a significant risk of erroneous deprivation of his custodial rights. Father did not object to any of Dr. Prosniewski’s testimony. During his cross-examination, he did not attempt to establish that Dr. Prosniewski was somehow biased against him or that she had preconceived notions about him. He offered no evidence to support the allegations in his section 388 petitions. And during closing argument, he did not — as he does here — contend that Dr. Prosniewski was biased.
As in Walter E., there is no evidence that Dr. Prosniewski was biased. Father repeatedly claims Dr. Prosniewski was “biased” because she “operated on the assumption that [father] had molested [daughter].” This argument fails. Dr. Prosniewski was not operating on an “assumption.” She was operating on information that daughter conveyed to Barbie T. and that Barbie T. conveyed to her. Daughter told Barbie T. that “her potty hurt and it was bleeding.” Daughter explained that “her dad hurt her potty really, really bad” a “long time ago.” And Dr. Prosniewski was acting based on her observations of daughter. Dr. Prosniewski testified that daughter seldom spoke of father during therapy sessions, which indicated that daughter was afraid of dealing with thoughts of her father.
Father also repeatedly suggests that Dr. Prosniewski was biased because she “openly disregarded the court’s finding” that he did not sexually molest daughter. As noted above, the court determined that the Department did not meet its burden of proof at the jurisdictional hearing regarding the allegation that father sexually molested daughter. Following father’s logic, the court’s finding somehow precluded Dr. Prosniewski from concluding that father may have sexually molested daughter. Father cites no authority to support this tortured argument.
Moreover, father reads too much into Dr. Prosniewski’s conclusions. In her December 2007 letter, Prosniewski acknowledged that the allegations of father’s sexual abuse had not been substantiated but stated that daughter had reported that father “hurt her in her ‘private’ areas” in June 2007. She never opined that father sexually abused daughter; instead, she was careful to note that father was the “alleged” perpetrator of sexual abuse. At the section 388 hearing, Dr. Prosniewski described daughter’s aggressive, violent, and sexualized behavior and concluded, based on that behavior, that “it seem[ed] as if daughter [was] getting traumatized [ ] every time she sees her dad.” There is no evidence in the record that Dr. Prosniewski disregarded the court’s previous finding that the Department did not establish, at the jurisdictional hearing, that father sexually molested daughter.
In Walter E., the court made an astute observation, one that rings true here. The court determined that “In denying [the mother’s] request, the juvenile court was acting both to protect the interests of the minor and to prevent the dependency proceedings from becoming an adversarial battle of experts. A requirement that the juvenile court afford each parent in a dependency proceeding a psychological expert of his or her choice, with permission separately to evaluate the dependent minor and present opinion testimony, would unnecessarily prolong jurisdictional and dispositional hearings and impose a significantly greater hardship on the minor.” (Walter E., supra, 13 Cal.App.4th at pp. 138-139, fn. omitted.) Following the reasoning of Walter E., we conclude that the court did not violate father’s due process rights by declining to appoint a second therapist to opine on the issue of visitation.
DISPOSITION
The order granting the Department’s section 388 petitions, denying father’s section 388 petitions, and terminating father’s visitation with daughter and son, is affirmed.
We concur: Simons, J., Dondero, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.