In re K.A. CA3 ( 2021 )

Filed 7/26/21 In re K.A. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
----
In re K.A. et al., Persons Coming Under the Juvenile C093012
Court Law.
EL DORADO COUNTY HEALTH AND HUMAN (Super. Ct. Nos.
SERVICES AGENCY, SDP20190030 &
SDP20190031)
Plaintiff and Respondent,
v.
B.A.,
Defendant and Appellant.
B.A., father of the minors, K.A. (age 6) and H.A. (age 8), appeals from the
juvenile court’s visitation order. (Welf. & Inst. Code, § 362.1.)1 He contends there was
insufficient evidence to support the order for supervised visitation. We will affirm the
juvenile court’s order.
1 Further undesignated statutory references are to the Welfare and Institutions Code.
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FACTUAL AND PROCEDURAL BACKGROUND
Juvenile Dependency Petition and Detention Hearing
On October 9, 2018, Lassen County Child and Family Services (Lassen CFS) and
a police officer responded to a call at B.A.’s home. It was reported that the minors K.A.
and H.A.’s half sibling, A.E., had told a friend that B.A. paid her older brother to touch
her in private places. A.E., however, denied the allegations and had no known older
brother. Subsequently, the minors’ mother V.A. (Mother) reported to Lassen CFS that
she believed B.A. produced child pornography because she found a SanDisk card in
appellant’s things which had pictures of the minors naked and posed. Mother agreed to a
safety plan that she would not allow B.A. to have any contact with the children, file a
restraining order against him, and seek Lassen CFS services. However, it was reported
that B.A. was in the home thereafter, and an emergency multidisciplinary interview
(MDI) was scheduled and the children were taken to the district attorney’s office for an
interview.
During the MDI, half sibling A.E. disclosed that at the approximate age of six she
was living in Nevada and was home alone with B.A. when an unidentifiable man came to
the home, spoke with B.A. about money, and then sexually assaulted her while B.A. left
the room. A.E. reported she took the pictures on the SanDisk card because they were
having a fashion show and included pictures in the bath and pictures she did not take. A
police detective attempted to interview H.A., however, the detective alleged that H.A.
had been heavily coached. Mother claimed B.A. was not living in the home he had just
been visiting. B.A. was interviewed regarding the allegations and stated he did not know
why A.E. made such accusations and felt she needed mental help.
On November 7, 2018, Lassen CFS filed a juvenile dependency petition for the
children K.A. and H.A. against B.A. and Mother alleging in part that the half sibling’s
allegations against B.A. of sexual exploitation placed K.A. and H.A. at risk of physical
and emotional harm, damage, danger, and sexual abuse. Lassen CFS recommended the
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minors be detained from B.A. and he be offered services but contact between the minors
and B.A. would be detrimental to the minors’ well-being.
At the November 8, 2018, detention hearing, B.A. denied the allegations of the
petition. The juvenile court found a prima facie showing was made that the children
came within section 300 and ordered them detained from B.A. The court permitted B.A.
to have supervised in-person visitation with his children one time per week, for a total of
two hours, with no other contact. The court ordered services be provided as soon as
possible to reunify the children and family.
As of the date of the November 21, 2018, jurisdiction report, no visitation
occurred because B.A. was working in Nevada and had difficulty with traveling.
Jurisdictional Hearing
The juvenile court held a jurisdictional hearing on November 26, 2018. B.A.
submitted on the November 7, 2018, petition and filed a waiver of rights. Accordingly,
by a preponderance of the evidence the allegations in the petition were held to be true.
Disposition Report and Disposition Hearing
The disposition report filed on December 6, 2018, indicated that both parents had
not met with Lassen CFS since the jurisdictional hearing. According to the report,
Lassen CFS attempted several times to contact Mother since the jurisdictional hearing,
and Mother failed to meet with Lassen CFS. The report further indicated that no
visitation occurred and discussed contacts made with Mother about visitation, however,
did not indicate any contact was made with B.A. as to his visitation. Lassen CFS stated it
was not able to develop a case plan for the parents’ services “due to their lack of
participation.” Lassen CFS provided a case plan for the children only.
At the December 10, 2018, disposition hearing, counsel stipulated to disposition
and the court found clear and convincing evidence of circumstances justifying removal of
the children from B.A. under section 361, subdivision (c)(1). B.A. had no objection to
the county counsel’s request that he report to Lassen CFS to set a case plan.
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Interim Reports and Hearing
In advance of a scheduled interim hearing, the minors’ court-appointed special
advocate (CASA) filed a CASA report and recommendations on January 3, 2019. The
CASA reported that B.A. had two visits with the children the week prior to when the
report was filed and that visitation was an issue because B.A. lived some distance from
the minors’ placement. On January 4, 2019, Lassen CFS filed a supplemental report to
the dispositional report filed on December 6, 2018. B.A. met with Lassen CFS after the
dispositional hearing and participated in the development of his case plan. B.A.’s case
plan included general counseling, a parenting education program, and a substance abuse
outpatient program with submission to drug and alcohol testing. At the January 7, 2019,
interim hearing, counsel stipulated to the Lassen CFS proposed case plan for B.A.
Six-month Review Reports and Hearing
In advance of the scheduled six-month review, the CASA filed a report and
recommendations on June 6, 2019. The CASA reported that during a supervised visit
between B.A. and the minors, the minors were playful with B.A. for the first part of the
visit and the visit was normal. On June 14, 2019, Lassen CFS filed a status review report
recommending that family reunification services (FRS) continue for B.A. B.A. made
weekly contact with Lassen CFS since his case plan started, attended visits on a weekly
basis, and checked in with Lassen CFS and provided drug testing. B.A. moved to more
time and less supervision for his visitation with the goal of beginning overnight visits in
the near future. Lassen CFS reported that the prognosis of the children returning to B.A.
was likely.
The court held B.A.’s continued section 366.21, subdivision (e) review hearing on
June 24, 2019. The hearing was set for contest on July 2, 2019, by Mother because
Lassen CFS recommended to terminate FRS for her. The court adopted Lassen CFS’s
recommendation to terminate FRS for Mother and ordered FRS continue for B.A.
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12-month Review Reports and Hearing
Lassen CFS filed a report recommending B.A. continue to be provided FRS. B.A.
complied with his case plan and attended therapy every two weeks to address the issues
of his sexual exploitation charge and his substance abuse history. Additionally, he
completed a parent education, coparenting, and family stabilization course. He began
overnight visitation every weekend with his children and after his roommates’
background check completion, he continued his overnight visits in his home. Lassen
CFS recommended the family would be best served by transferring the case to the county
of B.A.’s residence.
At the December 9, 2019, section 366.21, subdivision (f) 12-month review
hearing, the court found that B.A. substantially complied with his case plan and ordered
his FRS to continue finding that there was a substantial probability return of the children
to B.A. by the 18-month permanency hearing date. The court granted the request to
transfer the juvenile dependency case to El Dorado County, California where B.A.
resided.
Interim Report and Hearing
Following transfer to El Dorado County, on February 18, 2020, the El Dorado
County Health and Human Services Agency/Social Services/Child Protective Services
(El Dorado CPS) filed an interim report. El Dorado CPS detailed concerns about B.A.’s
mental health services not addressing the issues that originally brought him to the
attention of child protective services. El Dorado CPS spoke with B.A.’s therapist and
was informed that Lassen CFS did not inform him that he was to address the sexual
exploitation and sexualized behaviors with B.A., which were outside his scope of
practice. Further, El Dorado CPS reported that B.A.’s previous parenting class was
insufficient and his drug testing was infrequent and requested B.A. participate in an
updated substance abuse assessment. El Dorado CPS conducted a home visit but was not
permitted to enter by B.A.’s roommate while B.A. was not at home. There was a
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marijuana scent when B.A.’s roommate opened the door. El Dorado CPS informed
Lassen CFS of their concerns about finding marijuana on the counter and beer in the
restroom when they returned a few days later to conduct a home inspection. El Dorado
CPS’s assessment stated that B.A.’s case plan services appeared appropriate, but felt he
had not alleviated the concerns that brought the family to the attention of the court as the
services he engaged in were inadequate “to meet his needs.” El Dorado CPS noted
concern about the overnight visitation and recommended that B.A. travel to the area of
the children’s placement, reducing his visitation to a minimum of one time weekly for
four hours.
The Douglas County Sheriff’s Department supplemental narrative was also
included in the interim report, opining that the inappropriate photographs of the children
previously alleged to have been taken by B.A. were taken by another child. The child,
H.A., disclosed that her half sibling had taken “ ‘bad’ ” pictures of her. The sheriff’s
department deemed the case inactive.
At the March 4, 2020, continued transfer in review hearing, El Dorado CPS
informed the court that B.A.’s case plan was updated to reflect services needed for
reunification. The court adopted the case plan as submitted.
18-month Review Report and Hearing
On May 1, 2020, El Dorado CPS filed a section 366.22 review report indicating
that B.A. agreed to participate in the court-ordered services with the service providers
recommended by El Dorado CPS. B.A. began random urinalysis and tested positive for
THC. B.A. attempted to engage in court-ordered services but was unable to start some
services due to the closure of the community service providers on direction of the
statewide shelter-in-place order. B.A. completed his drug and alcohol program and
attended Alcoholics Anonymous meetings weekly, but it was determined he did not
qualify for substance use disorder treatment. He started an intake packet from
Professional Services Associates, an organization he was referred to in order to address
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the sexual exploitation of the minors’ sibling. Following the shelter-in-place order, B.A.
had video chat visitation with the minors at a minimum of two times per week.
El Dorado CPS’s assessment indicated that although B.A. participated or
attempted to participate in services, significant progress could not be determined.
Because B.A. was unable to make progress with the court-ordered services due to service
providers being closed, El Dorado CPS recommended he continue with court-ordered
services in order to be able to make substantial progress towards reunification and
requested the section 366.22 18-month review hearing continued 90 days. The court
granted the request.
El Dorado CPS filed an addendum report on July 20, 2020, noting that the minors
reportedly enjoyed visits with the parents. Both children stated they would like to reunite
with both parents and described the best case scenario in which they spent half of their
time with Mother and the other half with B.A.
Appellant continued to engage in services and attended weekly meetings with
Professional Services Associates in order to address the sexual exploitation allegations.
B.A. was rated at a low risk of recidivism based on the risk assessments. After speaking
to B.A.’s counselor at Professional Services Associates, El Dorado CPS noted concern
about whether B.A. benefitted from the treatment because he withheld “pertinent”
information and failed to disclose details associated with the original allegations. B.A.
informed his therapist he felt the allegations were fabricated. B.A. visited with the
children once weekly and participated in video chat visits that were monitored by the
foster family. The children were excited for the video visits but had trouble focusing
during the calls. El Dorado CPS assessed that there was a substantial likelihood for
reunification and believed it was in the best interests of the children to continue FRS.
On July 29, 2020, the court held the section 366.22 18-month review hearing.
B.A. did not oppose El Dorado CPS’s request to continue the 18-month review hearing
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and requested the court set the matter for contest. The court set the contested 18-month
review hearing for August 28, 2020.
El Dorado CPS filed an additional addendum report on August 25, 2020, noting
that B.A. continued to attend weekly nurturing parenting groups facilitated by El Dorado
CPS and completed the program. El Dorado CPS’s assessment indicated that reunifying
and returning the children with Mother would be in the children’s best interest. El
Dorado CPS believed B.A. had not addressed the issues that brought him before the court
and lacked insight into the case and his responsibilities for reunification with the children.
Further, El Dorado CPS was concerned that K.A. reported that B.A. told him an El
Dorado CPS social worker was a “ ‘monster’ ” and a bad person who wants to keep the
minors away from their father. Therefore, El Dorado CPS recommended B.A. continue
receiving visitation enhancement services to address the substantiated allegations to
ensure appropriate visitation could continue.
On August 28, 2020, the court held a contested 18-month review hearing. El
Dorado CPS’s counsel requested the court return the children to Mother and B.A. receive
reunification services. Appellant did not oppose the request that the children be returned
to Mother’s care but requested a contested hearing as to B.A.’s services. The minors’
counsel agreed with return to Mother but requested that B.A.’s reunification services be
terminated. The court ordered that B.A. receive visitation enhancement services, ordered
return of the children to Mother, and continued the 18-month review hearing.
Contested Section 366.22 18-month Review Hearing
On September 18, 2020, the court held the contested section 366.22 18-month
review hearing. The minors’ counsel joined in El Dorado CPS’s recommendation to
provide visitation enhancement services. The court discussed B.A.’s consistent
participation in services and its concern with reinstituting B.A.’s unsupervised visitation.
The court was concerned about reinstituting the visitation because there was no full and
complete information about where B.A. lived and who resided with him. The court was
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also concerned with B.A.’s “lack of candor on the part of the sexual offender therapist.”
The court requested a report indicating the therapist believed there was no risk to the
children before allowing unsupervised visits. The court observed, “I do think that he’s in
denial about the factual allegations that were sustained by the court in Lassen County and
what his -- what his potential culpability is as it relates to reunification with his children,
and at the end of the day, I have to make a decision based on the best interest of the
children, and the best interest of the children are having parents who aren’t discussing the
case with them, are fully participating in court-ordered counseling, and do whatever they
need to do to try and satisfy the concerns that brought them -- brought their case and their
family before the [c]ourt.”
El Dorado CPS clarified that B.A. had in fact been getting approximately
eight‑hour unsupervised visits during the day. B.A. agreed to continuing his counseling,
participation in the 12-step meetings, and random testing whenever El Dorado CPS
requested it. El Dorado CPS confirmed B.A. had provided his temporary address.
El Dorado CPS Social Worker Galina Melamed testified that she supervised the
social worker assigned to B.A.’s dependency case and the assigned social worker no
longer worked in the child protective services department. Melamed did not personally
review all of the files from Lassen CFS but was aware that B.A. had unmonitored
overnight and weekend visits with the minors. El Dorado CPS did not change the
overnight visitation order until February 19, 2020, but did not file a request of change in
court order. However, El Dorado CPS recommended unmonitored day visits at the
hearing.
When asked about a report that the child H.A. displayed traumatized behavior
after beginning overnight visits with B.A. where she would wake up screaming “[g]et off
me” and covering her vaginal area, Social Worker Melamed testified that was a factor in
her recommendation. Melamed testified that from her observation of B.A. berating his
caseworker and his denial of the allegations, he was not taking the case seriously.
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Melamed testified B.A. would berate the caseworker and testified about one instance
when the child K.A. expressed anger because he heard B.A. call the caseworker a
monster, declaring that his father does not lie. She confirmed that it was her
recommendation B.A. continue his unsupervised day visits as long as he continued to
participate meaningful in his enhancement services.
B.A.’s counsel requested the court order B.A.’s visitation to remain as
unsupervised day visits as there was no evidence of risk to the children. El Dorado
CPS’s counsel submitted on the report and the recommendation that the children be
placed with Mother and B.A. receive enhancement services while continuing to receive
visitation as previously ordered but if the visitation was supervised, the enhancement
services would no longer be necessary. After hearing additional information during the
hearing, the minors’ counsel recommended more stringent than court-ordered
requirements for B.A.’s visitation and that B.A.’s services be terminated because she was
concerned about B.A.’s inappropriate comments about the caseworker. Mother’s counsel
joined the minors’ counsel’s position.
The juvenile court stated it had concerns that there was no action by El Dorado
CPS to change the visitation given the allegations that were made. The court took issue
with B.A. denying the sexual allegations that were reported and his statement claiming
that all charges were dropped. However, the court acknowledged that there were no
criminal charges because the half sibling recanted. Further, the court noted that despite
previously warning B.A. to “have no discussions whatsoever with either of the children
related to this action whatsoever,” K.A. reported that B.A. called the caseworker a
“monster.” Based on B.A.’s conduct, the court was “stunned that there wasn’t a request
for supervised visitation” from El Dorado CPS. The court indicated it wanted supervised
visitation for B.A. initially but would revisit the issue once the court heard information
from the therapist about “controls” to put in place to ensure that the children were
protected during visits. The court stated it wanted to set an interim hearing date to get a
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report from the therapist and get reports concerning any testing and 12-step meetings
B.A. participated in as well as a report on supervised visitation.
The court ordered supervised contact between B.A. and the children for a
frequency of four hours once a week or twice a week for two hours and did not terminate
B.A.’s services. At the close of the hearing, the court set an interim hearing.
B.A. filed a timely filed a notice of appeal on November 9, 2020.
DISCUSSION
As his sole contention on appeal, B.A. contends the juvenile court abused its
discretion in ordering supervised visitation. Specifically, B.A. contends the juvenile
court erred in considering factors that did not indicate a finding contrary to the best
interests of the children, such as B.A.’s comment about his caseworker. As we shall
explain, the claim lacks merit.
Section 362.1 provides in part: “(a) In order to maintain ties between the parent or
guardian and any siblings and the child, and to provide information relevant to deciding
if, and when, to return a child to the custody of his or her parent or guardian, or to
encourage or suspend sibling interaction, any order placing a child in foster care, and
ordering reunification services, shall provide as follows: [¶] (1)(A) Subject to
subparagraph (B), for visitation between the parent or guardian and the child. Visitation
shall be as frequent as possible, consistent with the well-being of the child. [¶] (B) No
visitation order shall jeopardize the safety of the child. . . .” (§ 362.1; see In re Daniel C.
H. (1990) 220 Cal.App.3d 814, 838-839 [visitation may be limited if the juvenile court
finds it is not in the child’s best interest].)
A visitation order “necessarily involves a balancing of the interests of the parent in
visitation with the best interests of the child. In balancing these interests, the court in the
exercise of its judicial discretion should determine whether there should be any right to
visitation and, if so, the frequency and length of visitation.” (In re Jennifer G. (1990)
221 Cal.App.3d 752, 757.) In visitation matters, the juvenile court is accorded broad
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discretion. We review an order setting visitation for abuse of that discretion. (In re R.R.
(2010) 187 Cal.App.4th 1264, 1284.) “ ‘ ‘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.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-
319.)
Here, after considering the statements and opinions of the social workers, service
providers, and therapists, the court concluded that visitation needed to return to
supervised as unsupervised was no longer appropriate nor was it in the best interests of
the minors. In so concluding, the court expressed concern with the fact that B.A. had
made inappropriate comments to the minors about their caseworker and had denied the
sexual allegations. The court advised it wanted further information before ordering
unsupervised visitation, including a report from the therapist, reports concerning any
testing and 12-step meetings B.A. participated in, and a report on supervised visitation.
Thus, the court concluded supervised visitation, at least until the next interim
hearing, was appropriate and in the minors’ best interests “to ensure that the children are
protected during those visits.” “ ‘The trial judge, having heard the evidence, observed the
witnesses, their demeanor, attitude, candor or lack of candor, is best qualified to pass
upon and determine the factual issues presented by their testimony. This is especially
true where the custody of minor children is involved. . . . Where minds may reasonably
differ, it is the trial judge’s discretion and not that of the appellate court which must
control.’ ” (In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1492.) We do not
substitute our judgment for that of the trial court.
B.A. asserts the evidence of his engagement with court-ordered services
established that unsupervised visitation would be in the minors’ best interests. However,
complying with the reunification plan by attending the required therapy sessions and
parenting classes and visiting the child does not guarantee return of the child. (In re
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Dustin R. (1997) 54 Cal.App.4th 1131, 1143; In re Joseph B. (1996) 42 Cal.App.4th 890,
899-901.) While compliance with the plan is a pertinent consideration, it is not the sole
concern for the juvenile court, nor is it determinative. (In re Dustin R., at pp. 1139-1140;
In re Joseph B., at pp. 899-901.) Rather, the decision to return the child to parental
custody depends on the court’s assessment of the effect the return would have on the
physical and emotional well-being of the child. (§ 366.21, subd. (f).) In light of the
circumstances here, it was reasonable for the court to take appropriate steps to carefully
control the transition from supervised to unsupervised visits to ensure the well-being of
the minors. The court observed, “I do think that he’s in denial about the factual
allegations that were sustained by the court in Lassen County and what his -- what his
potential culpability is as it relates to reunification with his children, and at the end of the
day, I have to make a decision based on the best interest of the children, and the best
interest of the children are having parents who aren’t discussing the case with them, are
fully participating in court-ordered counseling, and do whatever they need to do to try
and satisfy the concerns that brought them -- brought their case and their family before
the [c]ourt.” Further, the court properly noted the lack of reporting on B.A.’s prior visits
and reporting from his therapist on sexual behaviors. It was appropriate and reasonable
for the court to order supervised visitation on a temporary basis to allow El Dorado CPS
to gather more information about B.A.’s behavior with the minors and B.A.’s progress in
therapy. Based on the record before us, we cannot conclude the juvenile court’s order for
supervised visitation “ ‘ “exceed[s] the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination.” ’ ” (In re Stephanie M., supra, 7 Cal.4th at
p. 318.)
We conclude the evidence supported the juvenile court’s exercise of discretion to
order supervised visitation.
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DISPOSITION
The juvenile court’s visitation order is affirmed.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
RENNER, J.
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