In re L.E. CA2/6

Filed 6/19/13 In re L.E. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re L.E., a Person Coming Under the 2d Juv. No. B244880
Juvenile Court Law. (Super. Ct. No. J068635)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
B.E.,
Defendant and Appellant.
B.E., the father of L.E., a dependent child (Welf. & Inst. Code, § 300, subd.
(b)),1 appeals orders of the Ventura County Juvenile Court which grant the Ventura County
Human Services Agency (HSA) supervision over his custody and visitation of L.E. We
conclude, among other things, that: 1) a Court of Appeal decision, which reversed a
jurisdictional finding that B.E. engaged in "inappropriate sexual boundaries" with L.E., did
not terminate the juvenile court's jurisdiction to place limits on B.E.'s custody and visitation
rights based on the child's best interests; and 2) substantial evidence supports the juvenile
court's orders. We affirm.
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All statutory references are to the Welfare and Institutions Code.
FACTS
L.E. was born in September 2002. B.E. is his father. In February 2011, L.E.'s
parents divorced and shared custody of L.E.
In 2011, L.E.'s mother brought L.E. to a hospital claiming B.E. had sexually
assaulted him. The hospital referred the matter to the Los Angeles County Department of
Children and Family Services (DCFS).
B.E. told a "hospital social worker" that "he had been naked in front of his
son, but had never been inappropriate with him."
In March 2011, DCFS filed a section 300 petition alleging that B.E. sexually
abused L.E. "by placing [his] nude body and penis against [L.E.'s] buttocks." Following a
detention hearing, "the court found a prima facie case had been established" under section
300, subdivisions (b) and (d).
In April 2011, DCFS filed "an amended section 300 petition," alleging L.E.'s
mother had tested positive for drugs which endanger L.E.'s "physical well-being and put him
at risk of physical harm." (§ 300, subd (b).) L.E. was placed with his maternal
grandmother.
The Los Angeles County Juvenile Court held a "contested adjudication trial."
In June 2011, the court struck the DCFS sexual abuse allegation. But it sustained the
petition against B.E. on the ground that he "exhibited seriously inappropriate behavior and
inappropriate sexual boundaries with his child in his home." The court said B.E. "has no
problem at all with the fact that he walks around his house, naked." The court found L.E.
"was suffering from severe emotional damage, and that there were no reasonable means to
protect him without removal from [B.E.'s] custody." B.E. was ordered "to participate in
counseling to address 'sexual boundaries.'" On July 13, 2011, B.E. appealed.
On October 7, 2011, L.E.'s mother filed a section 388 petition. She alleged
that she had enrolled in an "in-patient program in Ventura County" and "the court returned
[L.E.] to her care." She requested the Los Angeles County Juvenile Court to transfer
jurisdiction "to Ventura county." The court granted the petition and transferred the case to
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Ventura County. The Ventura County Superior Court accepted the transfer on January 19,
2012.
On March 22, 2012, HSA filed an "acceptance of transfer report." It
recommended that Family Maintenance (FM) services be provided to the mother and family
reunification services be provided to B.E. After a hearing, the Ventura County Juvenile
Court ordered HSA to provide FM services to the mother and family reunification services
to B.E. It said that "[f]actors contributing to the continued court dependency of the child"
include the mother's need "to complete drug counseling."
On June 7, 2012, the Court of Appeal, Second District, Division Eight
reversed the Los Angeles County Juvenile Court's jurisdictional findings against B.E. It
held the sexual abuse jurisdictional finding was not supported by substantial evidence. It
also reversed the order removing L.E. from B.E.'s custody. It said, "Here, DCFS has cited
no case, and our independent research has found none, in which dependency jurisdiction
was based exclusively on the fact that a parent walked around the family home nude in the
presence of a same sex child."
After reviewing the decision, HSA recommended that the juvenile court
dismiss the dependency case. But L.E.'s attorney objected. The attorney said L.E. "is
resistant to unsupervised visits" with his father. He was concerned about the impact those
visits would have on L.E.'s well-being.
HSA changed its position and recommended that it should maintain authority
to monitor the visits. It had received an assessment from L.E.'s therapist who said L.E. did
not want to be alone with his father. That psychologist noted that L.E. experienced such
anxiety about visits with his father that L.E. should receive treatment from "Therapeutic
Behavioral Services."
The juvenile court ruled that it had continuing jurisdiction and the appellate
decision did not prevent it from making appropriate orders relating to L.E.'s well-being.
HSA recommended that B.E. should receive increased visitation time with
L.E. At a contested hearing on September 11, 2012, an HSA worker testified that L.E. was
not ready to spend a "whole weekend" with his father and was "uncomfortable" spending
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nights with his father. The court heard additional testimony from the parents and received
medical assessments about L.E.'s mental health and severe emotional problems.
The juvenile court found expansion of B.E.'s visitation was appropriate, but it
should proceed cautiously given L.E.'s current mental and emotional condition. It found
that proceeding too quickly with unrestricted visitation would be harmful to L.E.'s well-
being. It ruled: 1) "The child shall remain in or be released to the physical custody of the
mother and father under the supervision of [HSA]," 2) "[v]isitation between the child and
the father shall be consistent with the well-being of the child and as arranged by [HSA]," 3)
the father shall receive "not less than three unsupervised visits per week of four hours each,"
4) "[HSA] shall provide Family Maintenance services to the child and the parents until the
next hearing," 5) "[t]he parents shall comply with and participate in the [HSA] Case Plan
. . . including any ongoing treatment program," and 6) "[HSA] has discretion to liberalize
visitation between the father and L.E. to include overnights on days during the week and for
weekends." The court set a six-month review hearing. B.E. appealed these orders.
DISCUSSION
The Court's Actions after Reversal of the Jurisdictional Finding against B.E.
B.E. notes that the June 7, 2012, Court of Appeal decision reversed the
jurisdictional finding that he sexually abused L.E. and the order that removed L.E. from his
custody. He contends that on remand this decision precluded the juvenile court from
maintaining further jurisdiction or considering new evidence about L.E.'s condition. He
argues the court erred by considering new evidence, by subjecting his visitation rights to
HSA's continuing supervision, and by denying his right to immediate and unrestricted
"overnight visitation and shared custody."
HSA notes the judgment the Court of Appeal reversed was entered on June 14,
2011. It claims: 1) the juvenile court properly retained jurisdiction to decide L.E.'s best
interests, and 2) it correctly considered evidence about L.E.'s well-being during the period
when the case was on appeal. We agree.
The reversal of the jurisdictional finding against B.E. did not divest the
juvenile court of jurisdiction over L.E. L.E. was a dependent child subject to the court's
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jurisdiction based on a separate jurisdictional finding of drug abuse by his mother. (§ 300.
subd. (b).) The court may properly decide not to dismiss the proceeding until after it
determines whether such action would be "detrimental to the child." (In re Austin P. (2004)
118 Cal. App. 4th 1124, 1134-1135; In re Francecisco (1971) 16 Cal. App. 3d 310, 314.)
"'[A]n appellate opinion . . . reviews "'the correctness of a judgment as of the
time of its rendition . . . .'"'" (In re Ryan K. (2012) 207 Cal. App. 4th 591, 598.) "It does not
apply to new developments which occurred during the pendency of the appeal." (Ibid.)
"'[W]hen an appellate court reverses a prior order of the [juvenile] court on a record that
may be ancient history to a dependent child, the [juvenile] court must implement the final
appellate directive in view of the family's current circumstances and any developments in
the dependency proceedings that may have occurred during the pendency of the appeal.'"
(Id. at p. 597, italics added.)
The facts regarding L.E.'s condition post-judgment (after June 14, 2011) were
not before the Court of Appeal. The Court of Appeal reversed findings involving B.E., but
it did not limit the juvenile court's jurisdiction over L.E. In fact, the court affirmed the
remaining orders of the juvenile court which included an April 13, 2011, order that L.E.
receive mental health treatment. It did not set aside the juvenile court's finding that L.E. had
"severe emotional" problems. In addition, it did not preclude the juvenile court from
considering facts that occurred while the case was on appeal. Consequently, the appellate
decision "did not deprive the juvenile court of the authority to act in the best interests of [the
child] when it reasserted jurisdiction after remand . . . ." (In re Ryan K., supra, 207
Cal.App.4th at. p. 599.)
B.E. suggests the juvenile court ignored the Court of Appeal decision and
decided to re-litigate the case as if the decision never existed. We disagree.
The juvenile court reviewed the appellate decision to make sure its
proceedings would conform to it. It followed the decision by ruling that the sexual abuse
jurisdictional finding against B.E. was "not true" and that the removal order was "reversed."
B.E. has made no showing that the court relied on any of the evidence about sexual abuse
which had previously been admitted in the Los Angeles County Juvenile Court proceedings.
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Moreover, the court correctly recognized its continuing duty "to make orders that are
consistent with what should be done" for L.E.. "[T]he purpose of any dependency hearing is
to determine and protect the child's best interests." (In re Luke M. (2003) 107 Cal. App. 4th
1412, 1425.)
The juvenile court had valid grounds to be concerned about L.E.'s well-being
during visits with B.E. HSA presented a June 18, 2012, letter from Dr. Sevet Johnson, a
treating psychologist, who stated, "In individual therapy sessions [L.E.] has consistently
stated, 'I don't want to be alone with my dad, because I'm scared he might hurt me again.'"
Johnson noted that when L.E. was informed he "would be going back to court to address the
type of visits he would have with his father, he . . . had an increase in acting out behaviors
(such as screaming and hitting others) in the home and school environments." Because of
this, L.E. had to receive "Therapeutic Behavior Services." L.E. was being treated for
"anxiety." Johnson said L.E. was "worried about what would happen to him after court."
Moreover, HSA suggests B.E. is estopped to claim the juvenile court erred by
not immediately terminating HSA's monitoring authority over visitation. It notes that on
July 18, 2012, B.E. and the other parties agreed to a plan to: 1) continue HSA's current
"visitation schedule," 2) to allow HSA to continue to review whether there should be an
increase in overnight and unsupervised visits, and 3) to have a new therapist conduct a
further "forensic assessment" of L.E. The court approved this plan and scheduled a review.
After a contested hearing, it approved HSA's recommendations and ruled HSA had
discretion to "liberalize visitation between the father and the child." B.E. has not shown that
the court either acted outside its authority or that it abused its discretion.
Substantial Evidence
HSA contends the juvenile court's orders are supported by the record. It
claims they were reasonable because: 1) the court moved toward the goal of unsupervised
visits, but 2) it proceeded cautiously based on substantial evidence that moving too quickly
would harm L.E.. We agree.
B.E. cites to evidence that he claims supports his position. But the issue is not
whether some evidence supports his claims, it is whether substantial evidence supports the
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judgment. (In re A.S. (2011) 202 Cal. App. 4th 237, 244.) In reviewing the sufficiency of the
evidence, we do not weigh the evidence or decide credibility of the witnesses as that is a
matter for the trier of fact. (Ibid.)
There is evidence that expanding the visits was a goal that should proceed
with caution. HSA worker Sonia Hernandez-Franco testified L.E. was receiving
unsupervised visits with B.E. She recommended that B.E. should receive a total of three "4-
hour" visits during the week. She felt L.E. could spend "part of Saturday" and "part of
Sunday with his father." But she determined that L.E. was not prepared to spend "the whole
weekend" with B.E. L.E. told her he is "uncomfortable" spending the night with B.E. She
said, "[H]e's not ready." Before going on visits with his father, L.E. experiences "increased
anxiety" and "some behavior issues."
Dr. Johnson's September 7, 2012, assessment reflected that L.E. was being
treated for depression. The trial court could reasonably infer that his father's actions were
interfering with his therapy and having a disruptive impact on L.E.'s well-being. Johnson
said, "In individual therapy sessions, in the last 3 months [L.E.] has increased regression and
withdrawal as evidenced by refusing to meet with TBS Specialists and stating that, 'My dad
doesn't want me to talk to you.'" L.E. said the "new visitation arrangements" were causing
him to experience "anxiety." Johnson concluded this anxiety was increasing L.E.'s
depression and was having a negative impact on his mental health. She said that L.E. "has
shown increased anxiety as evidenced by fleeing environments or situations when
overwhelmed, shutting down and refusing to engage in therapy sessions, and expressing
worry about what would happen if father learned of his verbalizing himself in sessions."
L.E. "has shown increased depressive symptoms such as expressing hopelessness and low
self-worth."
B.E. testified L.E. "needs therapy." He claimed L.E. has "been coached to say
things by his mother." But he admitted telling L.E. that at therapy sessions "he doesn't have
to talk to anybody anymore." L.E.'s mother testified about the severe emotional impact the
visits with B.E. were having on L.E.'s well-being. She said L.E. would complain of
headaches, "chew the skin off of his fingers," and vomit before visits with his father. When
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L.E. returned from those visits, he would become "angry." He would say, "I don't have to
follow your rules. I don't have to do my homework." L.E.'s mother said increased visitation
with B.E. now was not appropriate because L.E. was "out of control" and that it should wait
"until [L.E. was] more stable in therapy."
The trial court found, "We're moving to more time with dad, but I think it
would be harmful to just simply switch everything up at this point . . . without getting more
therapy in place, getting [L.E.] more stabilized." "'Although a parent's interest in the care,
custody and companionship of a child is a liberty interest that may not be interfered with in
the absence of a compelling state interest, the welfare of a child is a compelling state interest
that a state has not only a right, but a duty, to protect.'" (In re Luke M., supra, 107
Cal.App.4th at p. 1423.) "The state's compelling interest in protection requires the court to
focus on the child's placement and well-being, rather than on a parent's custody challenge."
(Ibid.) In making its orders, the juvenile court may properly consider the emotional harm
suffered by the child. (Id. at pp. 1425-1426.) B.E. has not shown the evidence is
insufficient to support the court's orders. Nor has he shown any abuse of discretion.
We have reviewed B.E.'s remaining contentions. He raises some issues that
were not raised in the trial court and consequently waived. As to his remaining contentions,
we conclude he has not shown error.
The orders are affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant
and Appellant.
Leroy Smith, County Counsel, Oliver G. Hess, Assistant County Counsel, for
Plaintiff and Respondent.
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