In re J.S. CA1/4 ( 2014 )

Filed 1/15/14 In re J.S. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re J.S., a Person Coming Under the
Juvenile Court Law.
MARIN COUNTY HEALTH & HUMAN
SERVICES,
Plaintiff and Respondent, A137671
v.
(Marin County
J.S., et al., Super. Ct. No. JV25193A)
Defendants and Appellants.
J.S. (Father) and A.R. (Mother) appeal an order of the juvenile court continuing its
supervision of their daughter, J.S. (Minor) and requiring Father to submit to a polygraph
test as part of his service plan. We shall affirm the order.
I. BACKGROUND
We are familiar with the background of this case through our review of an earlier
appeal in this matter, which challenged jurisdictional and dispositional orders of the
juvenile court with respect to Minor. (In re K.S. (Mar. 26, 2012, A131951) [nonpub.
opn.].)1
1
We take judicial notice of the record on appeal in In re K.S., A131951.
1
As we explained in In re K.S., Marin County Health and Human Services (the
Department) filed petitions in October 2010 pursuant to Welfare and Institutions Code2
section 300 on behalf of two half-sisters, then 12-year-old K.S. and then two-year-old
Minor. Mother is the mother of both K.S. and Minor. Father is K.S.’s stepfather (and
paternal uncle) and Minor’s father. Evidence from the jurisdiction report and the
jurisdictional hearing indicated K.S. had told a social worker that Father had been
touching her inappropriately for three years. He had touched her on her knees and thighs,
and had tried to touch her on her breast and between her legs. K.S. reported Father had
touched her on her “ ‘ private part,’ ” and had “ ‘put his penis in [her] private.’ ” K.S.
also reported that Father would look through the curtain in her room when she was
changing her clothes.3 At the jurisdictional hearing, K.S. testified that Father had
intercourse with her on more than one occasion. On one of these occasions, as she told
him to stop, Father said, “ ‘Oh no, you’re gonna see how good it feels having it, having
sex.’ ” Minor was sleeping in the bedroom on a couple of occasions when Father
molested her. Mother would call K.S. “ ‘a slut, a whore, a prostitute’ ” because she went
out with boys, and K.S. testified that Mother hit her regularly and yelled at her without
provocation. Mother and Father would hit Minor.
There was conflicting evidence about whether K.S. told Mother that Father had
sexually abused her. Mother told a social worker she thought K.S. was lying in order to
separate Mother and Father or because Father had restricted her television and radio use.
Mother later expressed uncertainty about whether the abuse had taken place. Father
denied having sexually abused K.S. However, Mother had sought and obtained
temporary orders restraining Father from having contact with the children except court-
ordered visitation and reported that he had moved out of the family home.
2
All undesignated statutory references are to the Welfare and Institutions Code.
3
At the time, Mother, Father, K.S. and Minor shared a bedroom, which contained
a bunk bed and a separate bed, with a curtain between the beds. Mother had told a police
officer she slept in the separate bed, K.S. slept on the top bunk, and Father and Minor
slept on the bottom bunk.
2
The juvenile court found K.S.’s testimony “ ‘compelling, credible, and
trustworthy,’ ” found that Mother not only had failed to protect K.S. but would also fail
to protect Minor, and found it had jurisdiction over both children.
After a dispositional hearing, the juvenile court continued Minor in foster care.
Both Mother and Father received reunification services for Minor.
Mother and Father appealed the jurisdictional and dispositional orders, and in In re
K.S., we affirmed the orders, concluding they were supported by substantial evidence. In
doing so, we concluded that the evidence supported a conclusion that Father’s actions in
sexually abusing K.S. placed Minor at risk of harm. (In re K.S., supra, at p. 18.)
In August 2011, the juvenile court granted the Department discretion to place
Minor in Mother’s care, and Minor returned to Mother at the end of that month. K.S.
remained in foster care.
A report prepared for a September 2011 six-month status review hearing indicated
that Father had participated in sex offender therapy because it had been mandated by the
court in order for him to reunify with Minor, but that he continued to maintain that he had
not engaged in any sexually inappropriate behavior with K.S. Father said he had treated
group therapy as an opportunity to learn about the mistakes of others, but he did not
believe it was necessary for his own rehabilitation or for the healing of his family.
Father’s therapist reported that Father had been consistent in denying that he had done
anything inappropriate; the therapist believed there was a “50/50 chance” that Father had
behaved inappropriately toward K.S. Father had expressed interest in taking a lie
detector test, something the therapist said most clients would be afraid to take. The
juvenile court continued its jurisdiction over Minor and ordered continued family
maintenance services.
The Department prepared a status report for a March 2012 family maintenance
review hearing. (§ 364.) The report indicated that Minor was still living in Mother’s
care, and that Mother’s parenting skills had improved. Father had attended his sex
offender group therapy regularly, and continued to deny having behaved inappropriately
toward K.S. or Minor. The group therapist stated that Father had been cooperative in
3
therapy and had participated in the group, and recommended that Father return home and
continue to receive family maintenance services. Mother believed the family therapy she
had been attending had improved her skills as a parent, did not believe the dependency
case should continue, and believed she could “be protective” if Father returned to the
home and that Minor would be safe with him. The juvenile court continued its
supervision of Minor, ordered continued family maintenance services, and allowed Father
to return to the home.4
In preparation for a status review hearing, the Department filed a report in
September 2012, noting that Minor was living with Mother and Father. Mother reported
that Minor and Father had a positive relationship, Minor had told a social worker she
liked playing with Father, and the social worker said their games appeared to be
appropriate. Father, Mother, and Minor had attended family therapy, and Mother was
attending individual therapy. Mother’s therapist reported that Mother said she provided
constant supervision of Minor, and the therapist believed Mother would seek help if she
saw anything of concern. Father had been allowed to leave his group sex offender
therapy at the end of April 2012. He had not acknowledged behaving inappropriately
toward K.S. Father had begun individual sex offender therapy in May 2012, but had
found it difficult to attend consistently because of health problems, and had participated
since about August 2012.
Father’s individual therapist was concerned that Father seemed to have no
empathy for K.S., and said that empathy was a “barrier to abuse.” She told the social
worker that Father had “not met any of the goals of therapy including understanding the
cycle of abuse, understanding patterns and impulses that cannot be controlled, acquiring
skills to work with triggers, developing empathy for the victim, and repairing the
relationship.” She said that “if [Father] did not receive the treatment that he needed, and
was actually a sex offender, he would offend again.” The therapist recommended that
4
The court also ordered a permanency planning hearing for K.S. pursuant to
section 366.26. In doing so, it noted that it continued to believe K.S.’s version of events
over that of Father.
4
Father submit to a polygraph test for therapeutic purposes; such a test could be used as “a
way to confront clients about their denial, encourage them to be honest, and to be
accountable for their actions,” and recommended that Father continue his treatment to
prevent possible recidivism. The therapist recommended that Father not see Minor
changing clothes, and that he not provide sexual education to Minor. Mother agreed to
abide by these recommendations.
The Court Appointed Special Advocate (CASA) recommended that the case be
dismissed. Among other things, the CASA stated that Mother appeared to have applied
many of the positive parenting techniques she had learned, and that the bond between
Father and Minor appeared strong.
The Department filed an addendum report in December 2012. According to this
report, Minor told a social worker at the end of September that she slept with Father.
Minor asked the social worker not to tell her former foster parent because the former
foster parent would take her away from her home if she knew. Minor also told the social
worker she would change clothes in front of Father, and asked the worker not to tell the
former foster parent. Minor said that neither Father nor anyone else had touched her
inappropriately. The social worker spoke with Mother, who said Minor wanted Father by
her side, and that Father stayed with Minor in bed until Minor fell asleep. Mother and
Father would then switch places, so that Mother slept with Minor and Father slept alone.
Mother denied that Minor changed clothes in front of Father. Mother agreed to comply
when the social worker told her Father could not sleep with Minor.
The addendum report also explained that, in October 2012, Minor told the social
worker “that she no longer sleeps with her father however then she stated that she
‘sometimes’ sleeps with her father.” When this happened, according to Minor, Father
was clothed and Minor was wearing a nightgown or pajamas, and Father touched only
her arms. Minor did not report any inappropriate play. Mother said Minor had not been
sleeping with Father. The social worker asked Father about sleeping in the same bed
with Minor, and Father said he “felt this ha[d] been made into a big issue when it was just
a small thing.” He believed it was natural for a father to sleep with his young children,
5
and that it was “ ‘crazy’ ” to think he would harm his daughter. He also said Minor was
having trouble adjusting to the new routine of not sleeping with Father, but that he and
Mother had been firm about enforcing this rule.
Finally, the addendum report explained that Father stated that he would be willing
to take the polygraph as long as he did not have to pay for it.5 At a contested review
hearing, the social worker testified that Father’s sex offender therapist was concerned that
Father had made so little progress and that a polygraph would allow him to be more
honest and make more progress within his therapy. She also said that if the polygraph
test indicated there had been no sexual abuse, there would be no reason to keep the
dependency case open. If the test indicated sexual abuse had occurred, the information
would be used only in a therapeutic setting, and the social worker would recommend that
the Department provide six months more of services and that Father continue to
participate in individual sex offender therapy. The Department would have the results of
the polygraph test, and the social worker did not know whether the results would be
included in any report to the court.
The juvenile court continued its jurisdiction over Minor, finding that conditions
that would justify the initial assumption of jurisdiction under section 300 still existed or
were likely to exist if supervision were withdrawn. The court continued family
maintenance services pursuant to an updated case plan, which included the requirement
that Father submit to a polygraph test.
II. DISCUSSION
A. Continued Jurisdiction
Appellants contend there is no substantial evidence to support the juvenile court’s
finding that Minor was at continued risk of harm in the absence of court supervision. “In
reviewing the sufficiency of the evidence on appeal, we look to the entire record for
substantial evidence to support the findings of the juvenile court. [Citations.] Evidence
5
Father’s prior willingness to accept a polygraph test when he was talking with
social workers is at odds with his comment in his reply brief that “[f]or [Father], the test
is offensive and reprehensible.”
6
sufficient to support the court’s finding must be reasonable in nature, credible, and of
solid value; it must actually be substantial proof of the essentials that the law requires in a
particular case.” (In re N.S. (2002) 97 Cal. App. 4th 167, 172.) We consider the evidence
in a manner favorable to the prevailing party, resolve all conflicts in favor of the juvenile
court’s order, and uphold the trial court’s order unless no rational fact finder could have
reached the same conclusion. (In re Yvonne W. (2008) 165 Cal. App. 4th 1394, 1401; In re
Athena P. (2002) 103 Cal. App. 4th 617, 629.)
Applying these standards, we conclude substantial evidence supports the juvenile
court’s finding. In the previous appeal in this dependency, In re K.S., we reviewed the
evidence that Father molested Minor’s sister and that Mother did not assist her daughter,
and concluded it provided substantial evidence to support the juvenile court’s assumption
of jurisdiction over Minor. (In re K.S., supra, A131951, [at p. 18].) We recognize that
since that time, Father has participated in group sex offender therapy and that there have
been no allegations that he sexually abused Minor. However, there was evidence that
Father’s therapist believed he had not met any of the goals of therapy, including
understanding the cycle of abuse, working with triggers, and developing empathy for the
victim. There was also evidence that even after extensive therapy, Father lay in bed with
Minor as she fell asleep, was present while she was changing her clothes, and was aware
that those activities might cause concern in the dependency proceedings, and that Mother
did not prevent him from doing so. From these facts, the juvenile court could reasonably
conclude continued therapy and supervision were necessary to protect Minor.
Appellants also argue that Father’s refusal to admit abusing K.S., standing alone,
is insufficient to continue jurisdiction, and that it would be “Kafkaesque” to require him
to admit to sexual abuse he contends never happened in order to end juvenile court
jurisdiction over his daughter. (See Blanca P. v. Superior Court (1996) 45 Cal. App. 4th
1738, 1752–1753 [recognizing risk that innocent parent might feel compelled to admit to
sexual abuse in order to receive reunification services].) Our conclusion, however, is
based on the record as a whole, which provides evidence that Father did indeed sexually
7
abuse K.S. and that the progress he and Mother have made is insufficient to protect
Minor in the absence of continued juvenile court supervision.
We are not persuaded otherwise by appellants’ reliance on In re N.S., supra, 97
Cal. App. 4th 167, 169–170, in which the Court of Appeal concluded the evidence did not
support the continuation of juvenile court jurisdiction. The jurisdiction there was
originally based on the father’s inability to manage his stress and anger. (Id. at pp. 172–
173.) In the ensuing six months, however, there was no evidence the father had acted
impulsively or had a temper outburst, and the evidence showed he had complied
completely with his case plan and made good progress in therapy, and his therapist could
identify no factors that left the minor at risk in the father’s care. (Id. at p. 173.) Here, as
we have explained, Father’s therapist had expressed concern about his lack of progress in
therapy; moreover, in the context of this case, the evidence that Father got into bed with
Minor at bedtime and was present as she changed clothes could reasonably raise concerns
for Minor’s safety.
B. Polygraph Test
Appellants contend the juvenile court erred in requiring Father to submit to a
polygraph test as part of his case plan.
A juvenile court has broad discretion to determine what would best serve a child’s
interest and fashion a dispositional order, which may include therapy for a parent. (In re
Christopher H. (1996) 50 Cal. App. 4th 1001, 1006; In re Lamonica H. (1990) 220
Cal. App. 3d 634, 649–650; In re Gabriel L. (2009) 172 Cal. App. 4th 644, 652; § 362,
subd. (a).) Appellants have not shown an abuse of that discretion here. It is clear that
Father’s therapist recommended, and the juvenile court ordered, a polygraph test in order
to further the purposes of Father’s therapy; that is, in order to assist him in being honest
in therapy and in taking responsibility for the actions that led in part to the dependency.
The therapist had opined that if Father was actually a sex offender and did not receive the
treatment he needed, he would offend again. The juvenile court could reasonably
conclude the polygraph test would assist Father in benefitting from that treatment and
thereby reduce the risk of harm to Minor.
8
We note that in a different context, the court in Brown v. Superior Court (2002)
101 Cal. App. 4th 313, 320–321, considered the propriety of requiring, as a condition of
probation, that a probationer submit to polygraph testing as part of his therapy. In
response to the probationer’s challenge, the court concluded that “periodic polygraph
examinations in furtherance of [the probationer’s] stalking therapy program is a valid
condition of probation because it is reasonably related to the crime of which [he] was
convicted and to possible future criminality.”6 (Id. at p. 321, italics omitted.) Similarly
here, we see no abuse of the lower court’s discretion in ordering a polygraph test as part
of Father’s sex offender therapy.
Appellants argue, however, that under Evidence Code section 351.1, subd. (a), the
results of a polygraph examination are inadmissible in court, that future recommendations
of the therapist and social worker will be based on those inadmissible results, and that
therefore they will impermissibly influence the court in making future decisions
regarding Father’s parental rights.7 This argument fails. First, Evidence Code
section 351.1 provides that the results of a polygraph examination are not admissible “in
any criminal proceeding . . . or in any trial or hearing of a juvenile for a criminal offense,
. . . unless all parties stipulate to the admission of such results.” (Italics added.) This
6
The court concluded, however, that the condition was overbroad because it did
not limit the questions to those relating to the successful completion of the stalking
therapy program and the crime of which the defendant was convicted. (Brown v.
Superior Court, supra, 101 Cal.App.4th at p. 321.) Here, the juvenile court ordered
services “as modified in the updated case plan.” That case plan provides, “Per the
recommendation of [Father’s] sex offender therapist, [Father] will participate in weekly
individual therapy and submit to a polygraph test.” It appears to us sufficiently clear that
the polygraph test may relate only to those matters pertinent to Father’s sex offender
therapy.
7
Appellants do not contend Father’s Fifth Amendment rights are implicated by the
requirement of a polygraph test, and we see no cause for such concern. It does not appear
that Father has been prosecuted for sexually abusing K.S. In any case, it is well
established that a person subject to prosecution in the criminal courts is entitled to use
immunity for statements made during court-ordered therapy in a dependency case. (In re
Lamonica H., supra, 220 Cal.App.3d at p. 649; In re Jessica B. (1989) 207 Cal. App. 3d
504, 521.)
9
statute does not prohibit use of polygraph tests in dependency proceedings. (See In re
Kathleen W. (1987) 190 Cal. App. 3d 68, 72.) Rather, subject to a foundational hearing,
the results of a polygraph test may be admissible if the results are relevant to the primary
issue before the court. (Id. at p. 73; In re Jordan R. (2012) 205 Cal. App. 4th 111, 122.)
In any case, based on this record, it would be speculation to conclude the trial court will
make orders based on the results of a polygraph test, whether or not admissible. In fact,
the juvenile court indicated that if the results of a polygraph test were in a social worker’s
report, the court would disregard that information. Accordingly, we reject appellants’
argument.
III. DISPOSITION
The order appealed from is affirmed.
10
_________________________
Rivera, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Humes, J.
11