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IN RE: S.M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.M., Defendant and Appellant. Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Marisa C. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
M.M. (Father) appeals from an order at the jurisdiction and disposition hearing denying him visitation with his 11-year-old daughter, S.M. We affirm based on substantial evidence that visitation would cause emotional harm to S.M.
FACTS AND PROCEEDINGS BELOW
At the October 2009 detention hearing, the court detained 11-year-old S.M. from her Father based on evidence that on numerous occasions Father “fondl[ed]” S.M.'s buttocks and “stared” at her breasts). In an interview with a DCFS worker earlier that month S.M. stated that “she has pleaded with her [F]ather to stop [grabbing her buttocks and talking about her breasts] but he continues this behavior.” S.M. further stated “she cannot take it anymore and cannot bear to visit her [F]ather at his residence.” S.M.'s younger brother, Matthew, stated that he had witnessed Father's conduct with S.M. The court released S.M. to the custody of her mother, who is separated from Father, and ordered family reunification services and monitored visits between Father and S.M.
The day after the detention hearing Father dropped off S.M.'s and Matthew's belongings that had been at his home. Father did not visit either child during the seven months between the detention hearing and the jurisdiction and disposition hearing.
At the jurisdiction and disposition hearing in May 2010, Father entered a plea of no contest to the petition which alleged: “On prior occasions [Father] established inappropriate boundaries with his daughter and made inappropriate comments about the child [S.M.]'s buttocks and breasts which caused the child to feel uncomfortable. On one prior occasion, there was an incident of inappropriate physical contact by Father to the child [S.M.] Father's conduct towards [S.M.] places her and her brother Matthew at risk of harm.” 1 Based on Father's plea, the court declared S.M. a dependent child of the court under Welfare and Institutions Code section 300, subdivision (b).2
The evidence at the hearing showed that Father and S.M.'s mother were going through dissolution proceedings. In an interview with a DCFS worker in December 2009 S.M. stated that for the past year, whenever she visited Father, he would “grab her buttocks,” “stare[ ] at her breasts” and make comments about “how her breasts were developing.” S.M. told the worker that Father's physical and verbal conduct “made her extremely uncomfortable.” She stated that she viewed his grabbing her as “sexual abuse,” not playfulness and that this conduct had continued despite her repeated requests to Father to stop. In her interview with the DCFS worker S.M. “adamantly” told the worker that she was “scared” to visit Father at his home and that “she did not want to visit her [F]ather again.” S.M. said she told her mother about the incidents and told her that she did not want to go to Father's home or spend weekends with him. S.M.'s mother told the DCFS worker that S.M. had complained to her about Father's behavior but that she believed she had to allow Father visitation with S.M. under the visitation order of the Family Law court.
The court ordered S.M. be taken from the custody of Father and that she remain in the custody of her mother. The court further ordered reunification services for Father and S.M. and that they participate in individual counseling to address the issues of Father's sexual molestation of S.M. and S.M.'s fear of Father. The court directed S.M.'s counsel to seek an order for joint counseling when S.M.'s therapist concludes that she is ready. In the meantime, the court ordered that Father “shall not have any contact with [S.M.]” on the ground that Father “poses a threat of harm and poses a danger to [S.M.] such that any contact would be detrimental and not in [S.M.]'s best interest.” (Italics added.)
DISCUSSION
We review the court's order denying visitation for substantial evidence of detriment to the child. (In re C.C. (2009) 172 Cal.App.4th 1481, 1492.) 3
Father does not deny that the court could consider S.M.'s emotional and psychological well-being in making its order regarding visitation. (In re Julie M. (1999) 69 Cal.App.4th 41, 50, [in determining whether to permit visitation the court may consider “ ‘the possibility of adverse psychological consequences of an unwanted visit between [parent and child]’ ”; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008 [court may deny parent visitation “if visitation would be harmful to the child's emotional well-being”]; but see In re C.C., supra, 172 Cal.App.4th at p. 1492 [visitation under section 362.1 can only be denied on the basis of “a threat to [the child's] physical safety”].) Father argues the evidence was insufficient to show that visitation would be detrimental to S.M. We reject this argument and conclude that substantial evidence supports the court's conclusion that S.M.'s visitation with Father would inflict emotional injury on S.M. and impair her emotional security.
In denying visitation, the court considered not only the physical harm to S.M. from Father's molestation but the psychological consequences as well. Referring to Father's failure to visit S.M. during the seven months between the detention and jurisdiction hearings, when visits were permitted, the court observed: “We can only imagine how a victim might reasonably feel to be harmed by a parent and then abandoned by the parent, perhaps to feel that the child is responsible for their own harm, for the harm which has been perpetrated on her.” The court further observed that S.M. “is fearful of her [F]ather for what he has done. She is emotionally needy.”
Father argues that denying him visitation with S.M. based on her “fear” is tantamount to giving S.M. control over whether visitation should ever occur. (See In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 [“In no case, may a child be allowed to control whether visitation occurs”].) We disagree. Denying visitation because it is harmful to the child's emotional health is not equivalent to denying visitation because it is the child's preference or predilection. Furthermore, the court's order takes S.M.'s preference out of the equation by stating that the court will consider permitting monitored visitation between Father and S.M. once S.M.'s therapist believes that she is ready for joint therapy.
We also reject Father's suggestion, without citation to authority, that sufficient evidence of psychological detriment to S.M. requires testimony from a psychotherapist. We believe that the juvenile court could reasonably conclude from the evidence of Father's abuse and S.M.'s reaction to it that her emotional well-being required no contact with Father until she had had a chance to heal from the psychological harm Father caused.
DISPOSITION
NOT TO BE PUBLISHED.
We concur:
FOOTNOTES
FN1. The court also declared Matthew a dependent child. That order is not subject to this appeal.. FN1. The court also declared Matthew a dependent child. That order is not subject to this appeal.
FN2. All statutory references are to the Welfare and Institutions Code.. FN2. All statutory references are to the Welfare and Institutions Code.
FN3. Father does not challenge any other aspect of the jurisdictional and dispositional orders.. FN3. Father does not challenge any other aspect of the jurisdictional and dispositional orders.
MALLANO, P. J. JOHNSON, J.
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Docket No: B224945
Decided: December 20, 2010
Court: Court of Appeal, Second District, California.
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