IN RE: S.R. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

These are the sixth and seventh appeals in this matter in eleven months.   In the first appeal, S.R. (Father) challenged a juvenile court order at a May 2009 dispositional hearing requiring that his visitation with S.R. (Daughter), age two, be monitored.   We affirmed because Father failed to show any error, insufficiency of the evidence, or abuse of discretion.   In the second appeal, Father challenged an order made at a progress hearing requiring that his visitation continue to be monitored.   We again affirmed.   In the third, fourth and fifth appeals, Father challenged subsequent juvenile court orders requiring that visitation continue to be monitored.   In each, his appellate attorney filed briefs pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 and In re Sade C. (1996) 13 Cal.4th 952, indicating no colorable issues existed.   In each case, we notified Father he had 30 days within which to submit a supplemental brief.   After no brief was filed, each appeal was deemed abandoned and dismissed.

In April 2010 the juvenile court denied Father's Welfare and Institutions Code section 388 petition in which he sought unmonitored visits.¹  In May 2010, before terminating jurisdiction the juvenile court issued an exit order requiring that visitation continue to be monitored.   Father challenges those orders in the current appeals, which we have consolidated.

We conclude father fails to show any error, insufficiency of the evidence or abuse of discretion, and therefore affirm.

BACKGROUND

Father has a history of domestic violence toward V.P., with whom he had a romantic relationship.   They had two children together, L.P. (female, born in 1993) and J.P. (male, born in 1998).   Father also has an extensive criminal history that includes numerous arrests and a half dozen misdemeanor and felony convictions.   Though Father's romantic relationship with V.P. ended in 1999, she permitted him to stay in her home in 2001 when he got out of jail.   Following an evidentiary hearing, the juvenile court found that in 2001, about two weeks into his stay, Father sexually abused L.P., who was then eight or nine years old, by placing his penis in her vagina.   No criminal charges were ever brought against Father arising from this incident.

By 2009 Father was married to T.R. (Mother), with whom he had Daughter in 2008.   Father and Mother engaged in acts of mutual domestic violence on several occasions.   They came to the attention of the Department of Children and Family Services (DCFS) when Father hit Mother while he was holding Daughter.

The juvenile court declared Daughter a dependent of the court pursuant to section 300, subdivisions (b) (failure to protect), (d) (sexual abuse), and (j) (abuse of sibling), based on her parents' “history of violent altercations” and Father's sexual abuse of L.P. The court found Father's sexual abuse of L.P. was “very clearly something that would put [Daughter], maybe not at a year old but certainly at some point in the future, at risk if it's not addressed.   And just because it hasn't occurred since, that we know of, does not mean it's not going to occur again.”

The court removed Daughter from Father and ordered her placed with Mother.   Mother was ordered to attend parenting classes and domestic violence support group or individual counseling.   Father was ordered to attend parenting classes, domestic violence counseling, and individual counseling to address sexual abuse issues.

The court ordered that Father's visits with Daughter be monitored.

Both Mother and Father have complied with the reunification plan.   In particular, Father successfully completed anger management and parenting classes, completed domestic violence counseling, and is participating in sexual abuse counseling.   Father's visits with Daughter have been regular and successful.   Father has not missed any visits, he plays with, talks to and feeds Daughter during the visits, and she appears happy and comfortable with him and becomes upset when he leaves.

Father maintains he never molested L.P., telling a social worker he thinks L.P. “confused him with [V.P.'s] live in boyfriend during the time of the sexual abuse allegations.”

Father filed a section 388 petition seeking unmonitored visits with Daughter and permission to return home, arguing he had complied with the reunification plan and enjoyed appropriate interactions with Daughter.   In opposition to the petition, DCFS argued Father will not be in compliance with the court's order requiring that he undergo sexual abuse counseling as long as he denies having sexually abused L.P. This is so, it argued, because denial of the earlier abuse means Father “cannot sufficiently address the sexual abuse allegations in therapy and the risk present [to Daughter] is still present.”   Under such circumstances, DCFS stated, “[i]t will remain the Department's recommendation that father continue to have only monitored contact with” Daughter.

On April 7, 2010, at the contested hearing on the petition, Father's therapist, John Munther, testified that Father cooperated in therapy, was open and honest, and seemed open to recognizing the effects that sexual abuse has on children.   His long term goals included developing improved impulse control, better communication skills, and a larger sense of empathy.   Munther testified Father had partially completed the goals.   He had gained some better communication skills and greater insight into people close to him.   And though Father continued to deny having molested L.P., Munther has concluded such denial was not a “door closer” to successful therapy.

On the other hand, when asked whether Father had developed a sense of empathy toward L.P. in connection with the sexual abuse allegations, Munther testified only that Father recognized the “implications and impact” of the allegations on others.   Munther could not venture a definitive opinion as to whether Father should or should not be around children without supervision.

The juvenile court denied father's section 388 petition on April 7, 2010.   On May 5, 2010 Father was reported to be in full compliance with the reunification plan with the exception that he continued to deny having sexually abused L.P. back in 2001.   The court terminated jurisdiction and set forth several exit orders, one of which was that Father's visits with Daughter continue to be monitored, though Mother was given authority to “liberalize” visits as she saw fit.

Father appeals from the April 7 and May 5 orders.

DISCUSSION

Father contends the court abused its discretion when it denied his section 388 petition seeking unmonitored visitation and in its exit order requiring that visitation continue to be monitored.   Specifically, he argues that so long as he exercises his right to maintain his innocence regarding the 2001 sexual abuse of L.P., he “can attend all the programs in the world, attend therapy on a religious basis, show all the empathy in the world towards child victims of sexual misconduct and demonstrate that he understands the trauma that these victims endure,” but will never be allowed to have unmonitored visits with Daughter.   DCFS appears to agree, arguing “the juvenile court said it was difficult to find that [Father] no longer posed a risk to [Daughter] based upon his denial of his sexual abuse of [L.P.].” The department argues that until Father admits in his individual counseling sessions that he sexually abused L.P., circumstances cannot “possibly change[ ],” and the “problem continues as a result of father's denial.”

A parent or any other person may, on grounds of change of circumstance or new evidence, seek modification of a previous order of the court so as to serve the child's best interest. (§ 388, subds.(a), (c).)  To succeed on the petition, a petitioner must show, by a preponderance of evidence, that there has been a sufficient change of circumstances to warrant the requested modification and that the requested change of order is in the child's best interest.  (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532-535;  In re Casey D. (1999) 70 Cal.App.4th 38, 47.)   We review the juvenile court's denial of a section 388 petition for abuse of discretion.  (In re Jasmon O. (1994) 8 Cal.4th 398, 415;  In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)  “We must uphold the juvenile court's denial of appellant's section 388 petition unless we can determine from the record that its decisions ‘ “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.”  [Citations.]’  [Citations.]”  (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)

When a juvenile court terminates jurisdiction in a dependency case it may issue an order for custody and visitation of the dependent child. (§§ 362.4, 364;  In re Chantal S. (1996) 13 Cal.4th 196, 202-203.)   In doing so, it has broad discretion to determine what serves the child's best interests, and its decision will not be reversed absent a clear abuse of that discretion.   (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300;  see also In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465 [juvenile court's visitation order reviewed under the abuse of discretion standard].)

Father contends the monitored visitation restriction is unsupported by substantial evidence and constitutes an abuse of discretion.   We disagree.

“Visitation is an essential component of any reunification plan.  [Citation.]  To promote reunification, visitation must be as frequent as possible.   [Citation.]”  (In re Alvin R. (2003) 108 Cal.App.4th 962, 972.)  “But a parent's liberty interest in the care, custody, and companionship of children cannot be maintained at the expense of their well-being.  [Citation.]  While visitation is a key element of reunification, the court must focus on the best interests of the children ‘and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm specified in section 300.’  [Citation.]”  (In re Julie M. (1999) 69 Cal.App.4th 41, 50.)

The question is whether the court's determination that the visitation provided is in the best interest of the child exceeded the bounds of reason.

At the May 2009 dispositional hearing the juvenile court concluded that Father's history of violence and his sexual abuse of L.P. created “a very, very dangerous situation,” and “poses great risk to [Daughter] ․ if father does not get treatment.”   In the ensuing months Father has obtained treatment, completing anger management and parenting classes and anger management counseling and partially completing sexual abuse counseling.   He has also had numerous successful visits with Daughter.   But Father has not yet completed sexual abuse counseling, and his therapist was unable to testify that he had developed a sense of empathy toward L.P. or to state one way or another whether he should be permitted unsupervised access to children.

The juvenile court could reasonably conclude from these circumstances that the risk to Daughter persists, that circumstances have not changed sufficiently to permit unmonitored visitation, and that monitored visitation remains in Daughter's best interests.   The April 7 and May 5 orders denying Father's section 388 petition and imposing visitation restrictions were therefore within the court's discretion.

That is not to say that Father must admit he sexually abused L.P. before he will be permitted unmonitored visitation with Daughter.   DCFS cites no evidence suggesting, and the juvenile court did not hold, that Father's refusal to confess to the molestation by itself puts Daughter at risk.   It is the inability of Father's therapist to state unequivocally or at least to a reasonable medical probability that Father has developed a sense of empathy and should be permitted unsupervised access to children that suggests he needs to do more before he is permitted unmonitored visitation.

We are not insensible of Father's confession dilemma.  “In considering this problem of the ‘confession dilemma,’ a few basic (and for the most part commonplace) truths must be kept in mind.   Few crimes carry as much (or as much deserved) social opprobrium as child molestation.   Most people would rather be accused of bank robbery.   The crime is usually done in secret.   Proof is often difficult.   Perpetrators are not likely to admit their guilt.   The victims of molestation may be too young, too frightened, too embarrassed or too dependent to provide credible evidence against the molester.   And innocent children need protection.  [¶] But by the same token, it cannot be denied that it is an outrageous injustice to use the fact parents deny they have committed a horrible act as proof that they did it.   That really is Kafkaesque.  [Fn.] ․ Further, it is undeniable that false accusations of child molestation do happen.  [Fn.] In such a case, ‘denial’-in both its legal and psychological senses-should not become, perversely, the very fact which demonstrates the futility of reunification services.  [Fn.]” (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752-1753.)   But Father's denial of the sexual abuse allegations is not the fact that demonstrates reunification services have been unsuccessful.   Father's lack of empathy for L.P. and the inability of his therapist to conclude that he should be permitted unsupervised visitation with Daughter suffice to support the juvenile court's order.   That order was within the bounds of reason.

DISPOSITION

The orders of April 7 and May 5, 2010 are affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Unspecified statutory references will be to the Welfare and Institutions Code..  FN1. Unspecified statutory references will be to the Welfare and Institutions Code.

ROTHSCHILD, Acting P. J. JOHNSON, J.