Opinion
D073973
10-10-2018
In re G.D. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.D., Defendant and Appellant.
Terrence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SJ13388A-D) APPEALS from orders of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed. Terrence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
At the contested jurisdiction and disposition hearing in dependency proceedings under Welfare and Institutions Code section 300, subdivisions (d) and (j), the juvenile court issued orders in the cases of dependents G.D., J.H., K.D., Jr. (Junior), and M.D., making true findings on the dependency petitions filed by the San Diego County Health and Human Services Agency (Agency) and placing the children with their mother, L.H. (Mother). The court granted K.D. (Father) weekly supervised visits with G.D., J.H., and M.D., but denied visitation with Junior, finding visitation with Father would be detrimental to Junior.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
At the contested six-month review hearing, the court issued orders continuing its previous visitation orders and denying Father's requests for unsupervised visitation or increased supervised visitation with G.D., J.H., and M.D. and for supervised visitation with Junior. Father appeals those review hearing orders, contending the court erred by denying his requests to modify its visitation orders. Based on our reasoning below, we affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In 1998, Father was charged with lewd and lascivious acts on a child under the age of 14, sexual battery, illegal entry into an inhabited dwelling, and contributing to the delinquency of a minor. He was convicted of one count of lewd and lascivious acts on a child under the age of 14 and two counts of inducing false testimony by force and was sentenced to six years in prison. Father was required to register as a sex offender.
In 2007, Father was charged with oral copulation of an unconscious victim and convicted of misdemeanor sexual battery.
In 2008 and 2009, Father apparently was charged in Mexico in two cases involving sexual abuse and possession of child pornography. One of the cases involved a child of Father's brother with whom he lived in Tijuana.
In 2015, Father was detained on suspicion of sodomy and lewd and lascivious acts on a child. According to the police report, a 16-year-old boy from Tijuana crossed the border and met Father at a nearby restaurant parking lot. Sitting in Father's car, the boy was given marijuana and an unknown drink that burned his throat. The boy began to feel dizzy. Father pulled down the boy's pants and orally copulated him. Father then raped him. The boy told police that Father had orally copulated him in Tijuana about 10 times before and was paid $10 to $20 each time, starting when he was 12 years old and continuing until he was 15 years old. Lacking corroboration of the victim's statement, the San Diego County District Attorney's office declined to prosecute the 2015 case against Father.
Mother met Father in 2009 when he moved from Fresno to Mexico. At the time, Mother had one son, G.D., who was born in 2007. In 2010, Mother and Father married in Mexico and Mother gave birth to J.H. later that year. Mother gave birth to Junior in 2011 and to M.D. in 2012.
In 2015, after Father was deported to the United States from Mexico, Mother and the children entered the United States, requested asylum, and were detained for one day. They then apparently contacted and resided with Father.
In May 2017, Agency responded to a hotline report that Father was a registered sex offender who acted inappropriately with his children. Mother told an Agency social worker that earlier that month Junior, then five years old, had come to her crying and stated that Father had hurt his penis. When Mother confronted Father, he stated it was an "accident" that happened when he was drying Junior off with a towel after a shower. Junior told the Agency social worker that on four or five different occasions Father had accidentally touched his "whinny." Father told him they were accidents, but Father pulled his "pirrin" (i.e., penis). The accidents only happen to him and not his siblings. When Father touches his penis, Junior feels sick and his stomach hurts. At Chadwick Children's Center the following day, Junior again stated that Father had touched his private part and pulled it with his hand and that it hurt. His siblings watched Father touch his penis and they laughed. Junior stated that Father hit them with a belt when they laughed because Father did not want them to tell about it.
G.D., J.H., and M.D. denied any sexual or physical abuse in the home. Father told an Agency social worker that on two occasions he dried Junior off with a towel after a bath when the towel got caught on his penis and hurt him. One week later, Father stated the accidental touching happened only one time.
Mother obtained an emergency protective order and subsequently obtained a temporary restraining order and moved with the children to a confidential shelter with Agency's assistance.
Father obtained an emergency protective order against Mother and filed an ex parte request for immediate custody of the children in family court, which request the court denied.
In June 2017, Agency filed juvenile dependency petitions for all four children. The petition for Junior alleged he was a child described by section 300, subdivision (d), who had been sexually abused or there was a substantial risk he would be sexually abused by Father. The petitions for G.D., J.H., and M.D. alleged they were children described by section 300, subdivision (j), whose sibling (i.e., Junior) had been sexually abused by Father and there was a substantial risk they would be sexually abused.
At the detention hearing, the juvenile court found Agency had made prima facie showings of the petitions' allegations and ordered that the children be detained with Mother. The court found that Father was M.D.'s presumed father. Later that day, Father was served with the court's restraining order protecting Mother and the children. At a subsequent special hearing, the court found that visitation with Father would be detrimental to all four children's emotional health and safety at that time.
The court struck Father's motion to disqualify it, finding the motion was not verified, was untimely, and did not state on its face any legal basis for disqualification.
On August 7, 2017, the court held a contested jurisdiction and disposition hearing in the children's cases. The court received in evidence Agency's detention report, its jurisdiction and disposition report, two addendum reports, two due diligence reports, a videotape and transcript of Junior's forensic interview, and an offer of proof regarding Junior's testimony. That evidence included the information discussed above, as well as Father's report to an Agency social worker that Mother had hit G.D. and J.H. in the past, causing them black eyes. Father stated he was the children's primary caregiver. Father denied ever touching any of the children in a sexual manner. An Agency social worker reported that Junior told her about a bad dream he had in which Father had a knife and Mother was bloody. Junior stated the dream scared him so much that he did not want to see Father. In Junior's stipulated testimony, he described a second dream he had in which Father was trying to kill Mother with a necklace and they had to move out of their home because too many people had seen her blood. Agency did not believe contact and visitation between Father and Junior were appropriate at that time because of the detriment they could have on Junior's emotional health. Agency did not oppose supervised visitation between Father and the other children. The court found that Father was the presumed father of G.D., J.H., and Junior. The court found Junior's statements regarding Father touching him were consistent and were corroborated to some degree by Father. The court stated that pursuant to Evidence Code section 1101, subdivision (b), it was permitted to admit evidence of Father's prior bad acts to prove motive, intent, common plan or scheme, or absence of mistake or accident. Based on Junior's statements and Father's past history, the court found, by clear and convincing evidence, that the allegations in the petitions were true. The court stated the allegations were true by "overwhelming evidence, far greater than clear and convincing evidence." The court found, by clear and convincing evidence, that custody of the children should be removed from Father and they should be placed with Mother. It ordered that Agency provide Mother with family maintenance services and Father with enhanced maintenance services. The court ordered weekly supervised visitation for Father with G.D., J.H., and M.D. The court found it would be detrimental to Junior to have visits with Father and therefore denied Father visitation with Junior.
As stated above, the court had previously found Father was the presumed father of M.D.
On September 27, 2017, we dismissed Father's appeal of the juvenile court's jurisdiction and disposition orders because his counsel filed a brief indicating there were no arguable issues and therefore no claim of error or other defect had been raised.
On May 7 and 8, 2018, the court held a contested six-month review hearing on the family maintenance plan. The court received in evidence Agency's jurisdiction and disposition report, its four status review reports, the testimony of Agency social worker Adriana Medina and all four children, and the stipulated testimony of Father, Medina, and Junior. The reports showed that Mother stated that the children had problems sleeping at night because they feared Father would take them. Father apparently violated the court's restraining order when at a December 2017 hearing he approached Junior in the courthouse bathroom and gave him a hug, causing Junior to scream and feel upset. Mother had not enrolled G.D., J.H., and M.D. in therapy, stating they did not need therapy. Mother had not engaged in family maintenance services. Junior told Medina he was having bad dreams in which Father is killing people. Junior stated he was scared of Father. He expressed concern that Father might take his brothers when they visited him.
Father continued to deny sexually abusing Junior and asked why Agency would believe a six-year-old child. Father's weekly visits with the other three children had been going well. G.D. told Medina that he did not want unsupervised visits with Father because he was afraid he might do something bad. J.H. told her he would not feel safe if he had unsupervised visits with Father because he might take G.D., M.D., and him. M.D. told her he did not want unsupervised visits with Father because it was "dangerous" and "your mom has to be with you."
Father's therapist, Dr. Reavis, reported that Father denied abusing Junior and minimized or denied his previous criminal convictions. In January 2018, Father refused to continue with individual therapy with Dr. Reavis after he told Father he would proceed cautiously in making recommendations. Nevertheless, Dr. Reavis recommended that visitation between Father and "the child" (i.e., Junior) would be "ok" if the child wanted it.
Junior's therapist reported that he did not believe it was in Junior's best interest to have visits with Father and, in fact, thought visits would not be a good idea. Junior had informed him he was not interested in visiting Father. In March 2018, the therapist reported that Junior was no longer experiencing posttraumatic stress disorder, upsetting memories, or anxiety, and believed ending Junior's therapy sessions would be appropriate. However, the therapist did not recommend visits between Junior and Father because Junior did not feel safe with him.
Medina believed that Mother's housing instability contributed to her failure to participate in services and failure to obtain therapy for the other three children. Medina recommended that G.D., J.H., and M.D. receive therapy before proceeding with unsupervised visits with Father. Although Father had performed well in group therapy, Medina believed his behavior had not significantly changed, citing his lack of insight, poor impulse control, anger, self-pity, manipulative behavior, and inability to recognize his children's anxiety.
Medina testified extensively at the hearing. Father had participated in sexual abuse therapy with Dr. Reavis since September 2017. Dr. Reavis described Father's assignments as "polished," meaning they were too well written and reported no problems. Dr. Reavis believed Father was minimizing the original issues that caused his children to become dependents of the juvenile court. Although he thought visits between Junior and Father would be "generally okay," Dr. Reavis had not assessed the children in forming that opinion. Medina did not believe Father had gained any insight from his group therapy sessions. Medina did not recommend visits between Junior and Father or unsupervised visitation between Father and the other three children. Nevertheless, she reported that G.D., J.H., and M.D. were excited to see Father during supervised visits and ran to hug him. During visits, Father acted appropriately and "very parental" and showed empathy toward the children. The visits Medina observed had gone well, and the children reported having a great time with Father.
When asked why G.D. was uncomfortable about having unsupervised visits with Father, Medina explained that G.D. was scared there would not be someone there watching them and making sure he and his brothers were safe. He was also scared that what happened to Junior might happen to his other younger brothers. Shortly before the hearing, Medina spoke individually with G.D., J.H., and M.D. and they each stated they did not want unsupervised visits with Father, even if the visits were in a public setting with other people around. Medina testified that she wanted Father to show some insight into the protective issues before she could recommend unsupervised visits. Father continued to deny any wrongdoing regarding Junior and failed to show any remorse about what happened to Junior. Medina wanted the other three children to receive therapy so they could process their feelings if something were to happen and to receive the therapist's recommendation regarding unsupervised visitation. Medina stated Agency was working with its clinical psychologist and outside organizations in an attempt to find a therapist who could communicate in Spanish with Mother and travel to the children's location for therapy.
The children testified outside the presence of their parents, although the parents listened to their testimony through the court interpreter's headphones. M.D. testified he enjoyed his visits with Father and always had a good time with him. M.D. stated he would be okay with going to the park with just his Father and nobody else.
Junior testified he loved Father and had given him a big smile upon seeing him in the courtroom. However, Junior stated he was afraid of Father because he might grab him again. Asked if Father had ever hurt him, Junior testified Father had done so when he grabbed him hard. Junior did not want to be with his brothers when they visited Father. Although Junior did not want to visit Father currently, he might want to visit with him in the future. Junior stated he would be okay with visiting Father if a social worker were present. When asked what he thought might happen if his brothers' visits with Father were not supervised by a social worker, Junior stated that Father would take his brothers.
J.H. testified he enjoyed his visits with Father and looked forward to them. However, because he was afraid Father might take him and his brothers some place where they could not be found, J.H. wanted a social worker to be present at visits. The social worker's presence made him feel safe. J.H. was also afraid Father would hurt him, although he did not know why he felt that way. He did not know if Father had hurt any of his brothers.
G.D. testified that he enjoyed his visits with, and loved, Father. However, he was afraid of Father, but did not know why. He did not want to go to a gym with his brothers and Father, because he was scared Father might take him and his brothers. About one and one-half years ago, Father took him and his brothers from their family home in Tijuana to Fresno and did not want to return them to Mother. After Father got arrested, someone called Mother and she came to get them. G.D. was afraid that Father would take him again if he was alone with him. Asked if there was any other reason why he would not want to be alone at a visit with Father, G.D. stated: "Because I don't want the same thing to happen to me that happened to my brother." G.D. was also afraid the same thing could happen to J.H. and M.D. if they were alone with Father.
In Father's stipulated testimony, he explained the courthouse bathroom incident. Father stated he was alone in the bathroom when he heard someone enter in. He saw that person was Junior, who briefly stared at him and then hugged him. Junior was excited to see him. As Father began to escort him out of the bathroom, he told Junior he loved him, but he had to go back to Mother. As Junior continued to tightly hug him, G.D. and J.H. entered the bathroom. J.H. hugged Father, while G.D. opened the door for them. Father stated he literally pried Junior away from him and walked away. The entire incident took one minute or less. Afterward, Father contacted his attorney, the social worker, and his parent coach about the incident.
Father's stipulated testimony also explained why he took the children to Fresno. In May 2014, because Mother was overwhelmed and was verbally and physically aggressive toward him and the children, Father took the children from their Tijuana home to his mother's home in Fresno. Father remained there with the children for about one month, enrolling G.D. in school and the other children in daycare. Father returned to San Diego during the week to work, leaving the children with his mother and sister. On several occasions, Father took the children to see Mother, and the children regularly spoke with her by telephone and video chat. In January 2015, Father, J.H., Junior, and M.D. returned to Mexico, leaving G.D. in Fresno until June 2015 so that he could complete his school year. After Father's sister helped Mother and the children cross the border into the United States in October 2015, they lived with Father's mother until February 2016.
Medina's stipulated testimony described a conversation she had with Mother in October 2017. Mother told her that Father took the children to Fresno for one year. After the children returned to her, they had trouble sleeping because they were worried Father would take them away again. Mother was also worried that Father would take the children away again.
Junior's stipulated testimony described the two nightmares he had during the summer of 2017 when he dreamt Father was attempting to hurt or kill Mother.
After hearing arguments of counsel, the juvenile court denied Father's requests for supervised visits with Junior and unsupervised or additional visits with G.D., J.H., and M.D. The court found visits with Father would be detrimental to Junior. The court gave Agency discretion to expand Father's visits with G.D., J.H., and M.D. if their counsel concurred.
Father timely filed a notice of appeal.
DISCUSSION
I
Legal Principles and Standards of Review
The purpose of juvenile dependency statutes is to provide maximum safety and protection for children who are currently being abused, neglected, or exploited, and to ensure the safety, protection, and emotional well-being of children who are at risk of such harm. (§ 300.2.) "The goal of dependency proceedings—to reunify a child with at least one parent—has been met when, at disposition, a child is placed with a former custodial parent and afforded maintenance services." (In re Pedro Z. (2010) 190 Cal.App.4th 12, 20 (Pedro Z.).) Accordingly, when a child is returned to a parent's custody at the disposition hearing, the reunification statutes do not apply and therefore no reunification services are required. (Id. at pp. 19-20; § 361.5, subd. (a).) In those circumstances, section 362, subdivision (b), applies and the parents may be required to participate in child welfare services. (Pedro Z., at pp. 19-20.) Those services are not reunification services, but instead are family maintenance services that are provided "in order to maintain the child in his or her own home" under the supervision of the county welfare department. (§ 16506; Pedro Z., at p. 20.) "[W]hen the child remains in a parent's home, the court reviews the status of the case every six months under section 364; under such review, the court is not concerned with reunification, but in determining 'whether the dependency should be terminated or whether further supervision is necessary.' [Citations.]" (Pedro Z., at p. 20.)
In general, it is improper for a juvenile court to deny parental visitation absent a showing it would be detrimental to the child. (In re Mark L. (2001) 94 Cal.App.4th 573, 580 (Mark L.).) However, as Agency notes, in family maintenance proceedings the juvenile dependency statutes do not expressly require any detriment finding for a court to deny parental visitation. (§§ 362, 362.4, 364.) Furthermore, even when juvenile dependency statutes require a finding of detriment to deny visitation, they generally do not expressly set forth the applicable burden of proof for that detriment finding (e.g., § 366.21, subd. (h) [when court orders a § 366.26 hearing, it shall continue to allow parental visitation "unless it finds that visitation would be detrimental to the child"]). There is a split of authority regarding the applicable standard of proof when a finding of detriment is required to deny visitation. (In re Manolito L. (2001) 90 Cal.App.4th 753, 761-762 [preponderance of the evidence standard of proof applies, citing Evid. Code, § 115]; In re D.B. (2013) 217 Cal.App.4th 1080, 1089 [same standard applies in postreunification proceedings]; cf. In re Dylan T. (1998) 65 CalApp.4th 765, 773-774 [clear and convincing evidence standard of proof applies].) In Mark L., we recognized this split of authority and disposed of the case without addressing which standard of proof should apply. (Mark L., at p. 581, fn. 5.) Like we did in Mark L., in this case we need not decide that issue and dispose of this appeal regardless of the applicable standard of proof for a finding of detriment to deny visitation.
One exception involves cases in which the juvenile court has found that adoption or termination of parental rights is not in the child's best interest and instead chooses another permanent plan for the child. (§ 366.26, subd. (c)(4).) In those cases, section 366.26, subdivision (c)(4)(C), provides that the court shall order parental visitation unless it finds "by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child."
Regardless of the applicable standard of proof, a juvenile court may deny parental visitation if it finds detriment based on the child's physical and/or emotional well-being. (See, e.g., In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357; In re T.M. (2016) 4 Cal.App.5th 1214, 1220; In re Matthew C. (2017) 9 Cal.App.5th 1090, 1094, 1102.) Furthermore, in juvenile dependency proceedings, the court must focus on the child's best interests. (In re T.M., at p. 1220.)
Likewise, there is a split of authority regarding the proper standard to apply when reviewing on appeal a juvenile court's detriment finding. Although some courts have applied an abuse of discretion standard of review (see, e.g., In re Brittany C., supra, 191 Cal.App.4th at p. 1356), we applied the substantial evidence standard of review in Mark L. and likewise do so in this case. (Mark L., supra, 94 Cal.App.4th at p. 581, fn. 5.) In so doing, "[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).) The appellant has the burden on appeal to show the finding or order is not supported by substantial evidence. (Ibid.)
Even if the abuse of discretion standard of review applies to a court's detriment finding, we conclude Father has not met his burden on appeal to show the court abused its discretion by finding it would be detrimental to Junior to have visits with Father at the time of the review hearing.
Parental visitation generally shall be as frequent as possible, but must be consistent with the child's well-being and shall not jeopardize the child's safety. (See, e.g., § 362.1, subd. (a)(1)(A), (B).) A court may restrict a parent's visitation if it finds the child's best interests require such restriction. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009; In re Melissa H. (1974) 38 Cal.App.3d 173, 175.) The juvenile court has broad discretion in deciding the appropriate terms and conditions of visitation between parents and their children. (In re Julie M. (1999) 69 Cal.App.4th 41, 51 (Julie M.).) On appeal, we apply the abuse of discretion standard in reviewing a court's orders regarding the terms and condition of parental visitation. (Ibid.; In re Megan B. (1991) 235 Cal.App.3d 942, 953.) A court does not abuse its discretion unless its decision exceeds the bounds of reason and is arbitrary, capricious, or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).) The appellant has the burden on appeal to affirmatively show the court abused its discretion. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 (Cliffton B.).)
II
Court's Visitation Orders
Father contends the juvenile court erred by issuing orders at the contested six-month family maintenance review hearing denying his requests for unsupervised visitation or increased supervised visitation with G.D., J.H., and M.D. and for supervised visitation with Junior. We disagree.
A
In arguing the juvenile court erred by denying his requests for unsupervised visitation or increased supervised visitation with G.D., J.H., and M.D. and for supervised visitation with Junior, Father relies heavily on the court's statement because the court found he had done a "commendable job" in complying with his family maintenance services plan. At the hearing, the court prefaced its findings and orders with a comment that Father "has done a very commendable job with Dr. Reavis. He's participated in the group sessions. He has done everything he should be doing as far as the services are concerned. He has had exceptionally good visits, supervised visits, with [G.D., J.H., and M.D.]." The court then continued and discussed other factors involved in its decisionmaking process and the reasons for its denial of Father's requests for visitation with Junior and increased or unsupervised visitation with the other children.
Father erroneously refers to the child welfare services ordered in this case as "reunification" services. As discussed above, because the children remained in Mother's custody, the services provided Father, Mother, and the children are "family maintenance services." (§ 16506; Pedro Z., supra, 190 Cal.App.4th at p. 20.)
In a closely related argument, Father maintains that the juvenile court erred by denying his requests regarding visitation because the record shows he had been working diligently on his family maintenance plan. He notes that between the jurisdiction and disposition hearing in August 2017 and the six-month review hearing in May 2018, he participated in group therapy with Dr. Reavis, who reported he had performed well in group work and had made progress. Dr. Reavis reported that Father was ready for supervised visits with Junior and expanded visitation with his other children. Father also notes that during visitation with G.D., J.H., and M.D. he acted appropriately and in a parental role and the children enjoyed their time with him. Based on that evidence showing his compliance with the family maintenance plan, Father argues the court erred by denying his request to change its visitation orders.
However, by so arguing, Father misconstrues and/or misapplies the substantial evidence standard that we apply in reviewing the juvenile court's order denying visitation with Junior based on its finding of detriment. (Mark L., supra, 94 Cal.App.4th at p. 581, fn. 5.) As noted above, under the substantial evidence standard of review, "[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.]" (L.Y.L., supra, 101 Cal.App.4th at p. 947.) By entirely omitting any reference to the evidence supporting the court's finding of detriment and focusing solely on his compliance with the family maintenance plan, Father has not met his burden on appeal to show there is insufficient evidence to support the court's finding at the six-month review hearing that visitation with him would be detrimental to Junior. (Ibid.)
On the contrary, based on our review of the record, we conclude there is substantial evidence to support that finding of detriment. First, the juvenile court found, by clear and convincing evidence, that Father had sexually abused Junior as alleged in the petitions. In so doing, the court admitted in evidence Father's long history of sexually abusing other minor children in the past and considered those bad acts, along with other evidence, as clear and convincing proof of the instant allegation. Second, Junior had two bad dreams in which Father was attacking Mother, and Junior stated the dreams scared him so much that he did not want to see Father. Junior stated he was scared of Father. He also expressed concern that Father might take his brothers when they visited him. Third, Mother reported that the children had problems sleeping at night because they feared Father would take them. Fourth, Junior's therapist reported that he did not believe it was in Junior's best interest to have visits with Father and, in fact, thought visits would not be a good idea. Junior had informed him he was not interested in visiting Father. Fifth, Medina, Agency's social worker assigned to this case, stated she did not believe Father had gained any insight from his group therapy sessions and did not recommend visits between Junior and Father (or unsupervised visitation between Father and the other three children). Finally, Junior consistently stated he did not want to visit Father. Junior testified at the hearing that he was afraid of Father because he might grab him again. Asked if Father had ever hurt him, Junior testified Father had done so when he grabbed him hard. Junior did not want to be with his brothers when they visited Father. Although Junior did not want to visit Father currently, he nevertheless might want to visit with him in the future. Accordingly, there is substantial, if not overwhelming, evidence to support the court's finding at the review hearing that visitation with Father would be detrimental to Junior. (Mark L., supra, 94 Cal.App.4th at p. 581, fn. 5; In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) By so finding and denying Father's request for visitation with Junior, the court acted reasonably and appropriately in proceeding cautiously regarding visitation between Father and Junior, especially in consideration of Father's instant actions toward Junior and his past history of sexually abusing other minor children.
Likewise, by citing evidence only in his favor, Father misconstrues and/or misapplies the abuse of discretion standard of review that we apply in considering on appeal the juvenile court's order denying expanded visitation with G.D., J.H., and M.D. (Julie M., supra, 69 Cal.App.4th at p. 51; In re Megan B., supra, 235 Cal.App.3d at p. 953.) As noted above, a court does not abuse its discretion unless its decision exceeds the bounds of reason and is arbitrary, capricious, or patently absurd. (Stephanie M., supra, 7 Cal.4th at pp. 318-319.) It is Father's burden on appeal to show the court abused its discretion by denying his request for unsupervised visitation or expanded supervised visitation with the other three children. (Cliffton B., supra, 81 Cal.App.4th at p. 423.) In addition to the evidence relating to Junior as discussed above, the record includes evidence that directly relates to the other children and supports the court's reasonable exercise of its discretion to deny Father's request for expanded visitation with them.
For the same reasons as discussed above, we conclude the juvenile court did not act in an arbitrary, capricious, or patently absurd manner and, instead, acted reasonably and rationally and did not abuse its discretion by denying Father's request for unsupervised visitation or expanded supervised visitation with G.D., J.H., and M.D. (Stephanie M., supra, 7 Cal.4th at pp. 318-319.) Father has not carried his burden on appeal to persuade us otherwise by merely citing his compliance with the family maintenance plan. (In re Cliffton B., supra, 81 Cal.App.4th at p. 423.) Rather, we conclude that, by denying Father's request for expanded visitation with G.D., J.H., and M.D., the court acted reasonably and appropriately in proceeding cautiously regarding visitation between Father and them, especially in consideration of Father's instant act of sexually abusing Junior and his past history of sexually abusing other minor children.
B
Father also argues that the juvenile court erred by denying his requests regarding visitation because it found he must confess to molesting Junior. At the six-month review hearing, the court stated:
"I would feel a lot more comfortable granting [Father's] request if [he] would basically acknowledge that 'Hey, I got a problem. I recognize I have a problem, and I want to do everything possible to make sure this doesn't happen again,' as opposed to denying that it happened.
"I made a finding by clear and convincing evidence that [Junior] was molested by [Father]. I believed [Junior's] testimony. . . .
[¶] . . . [¶]
"And until [Father] comes to grips with what his problem is—and problems can be fixed if you acknowledge you have a problem and go into therapy with the idea 'I got to fix this problem so it doesn't happen again with any other young boys.'
"The history speaks volumes for the fact that it happened in this case, and the problem still isn't fixed in my opinion based on the fact that [Father] continues to deny that this happened."
At the review hearing, the court adopted the recommendations set forth in Agency's updated child welfare services case plan that, inter alia, required Father participate in counseling to help him identify triggers and practice new skills, including that he "[w]rite a list of the triggers that led [him] to sexually touch [Junior]" and "[w]rite a letter of apology to [Junior] explaining [Father's] role in the sexual abuse . . . ."
Father argues that the court's statements and orders, as described above, were erroneous because the court, in effect, ruled that it would not change its visitation orders unless he admitted he molested Junior. He correctly notes the original child welfare services case plan adopted by the court at the August 2017 jurisdiction and disposition hearing did not require him to write either a list of triggers or a letter of apology, whereas the case plan adopted by the court at the six-month review hearing did. He argues the court failed to make it clear at the August 2017 hearing that it would require him to write that list and the apology letter before it would change its visitation orders in the future. Father concludes his argument, stating: "[Father's] reunification [sic] plan is clear. He needs to state in chapter and verse and in writing what he did sexually inappropriately to Junior."
However, the original case plan did require Father to participate in child sexual abuse group therapy for offenders "to learn about the dynamics of child sexual abuse and how environment and parent's choices can negatively impact the child in ways that will negative[ly] impact the child now and in the future. The parent will actively participate in the group to gain the necessary knowledge to be able to consistently meet his/her service objectives."
Father goes on to argue the juvenile court erred by purportedly requiring him to either confess he molested Junior or likely lose custody of his children, which presented him with a "confession dilemma." Noting the court reminded him at the hearing that he already had two prior criminal strike convictions against him and could face a minimum 35-year prison term with a third strike conviction, Father argues: "No reasonable person, whether they were guilty or innocent of molesting a child, would write and publish a statement describing in detail how they molested the child when they believed such a writing may be used to put them in prison for 35 years." Recognizing that in In re D.C. (2015) 243 Cal.App.4th 41 (D.C.) we held that a parent is entitled to use immunity in criminal proceedings for any admissions made during the course of juvenile dependency proceedings, Father argues the juvenile court in this case "should have [advised] him of the holding in [D.C.] and it should also have issued an immunity order at the disposition hearing."
The context in which the court made that statement was with respect to the children's fear that Father might "take" (i.e., kidnap) them by force, which action the court correctly indicated could result in a third strike conviction. Specifically, the court stated: "I think [Father] is aware he has two prior strikes, that a kidnapping charge is a violent and serious felony, that for each child, if he were to do that [i.e., wrongfully take them away during unsupervised visits], he would be looking at a minimum of 35 years to life for each child if he were ever to take these kids in a kidnap situation."
First, as Agency asserts, by not timely and specifically objecting to it below, Father waived or forfeited any challenge to the court's imposition of the purported confession dilemma as part of his family maintenance services plan. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886.)
In any event, assuming arguendo that Father did not waive or forfeit that claim, we nevertheless conclude Father has not carried his burden on appeal to show the court erred by imposing those writing requirements as part of his family maintenance services plan or by not advising him of his use immunity. In D.C., we recognized there is well-settled case law holding that admissions made by a parent during the course of treatment as part of a reunification plan are immune from use in any criminal proceedings. (D.C., supra, 243 Cal.App.4th at p. 57.) In the circumstances of that case, we concluded the father "automatically receives use immunity for statements made in court-ordered therapy." (Ibid.) We stated: "Based on this use immunity, a dispositional order requiring participation in therapy does not infringe a parent's right against compelled self-incrimination. [Citations.]" (Ibid.) "Because use immunity applies to his 'course of treatment ordered as part of the reunification plan' [citation]," we concluded that immunity applied to the court's approval of a case plan that included objectives requiring the father to write a list of triggers that led him to sexually touch his child and to write a letter of apology to each of his children. (Id. at p. 58.) Accordingly, we concluded that the inclusion of those provisions in the father's case plan was reasonable and not an abuse of the juvenile court's discretion. (Id. at p. 57.) Alternatively stated, we concluded: "The provisions of [the father's] case plan requiring him to admit sexually abusing [his child] are reasonable." (Id. at p. 56.) Furthermore, we concluded: "The juvenile court was not required to make an order specifically conferring use immunity in connection with [the father's] case plan. [Citations.]" (Id. at p. 58.)
Contrary to Father's assertion, based on our review of D.C. and the cases cited therein, we conclude Father does not face any purported "confession dilemma" based on his case plan's requirement that he "[w]rite a list of the triggers that led [him] to sexually touch [Junior]" and "[w]rite a letter of apology to [Junior] explaining [Father's] role in the sexual abuse . . . ." Rather, Father is entitled to use immunity in criminal court proceedings to the extent he makes admissions in the course of his case plan regarding his sexual abuse of Junior. (D.C., supra, 243 Cal.App.4th at pp. 57-58.) Furthermore, contrary to Father's assertion, the juvenile court was not required to inform him of that use immunity or to expressly confer such use immunity in its orders in this case. (Id. at p. 58.) When the court reminded Father that he had two prior strike offenses and should be aware of the consequences of a third strike offense, it did so, as noted above, in the context of a possible kidnapping offense if he were to forcibly take the children in the future. Accordingly, in so commenting, the court was not addressing the potential consequences of Father's admission that he sexually abused Junior in this case. In fact, Father's counsel presumably recognized that, stating: "[W]e certainly don't have any criminal charges coming out of this. [There] was not any sense of—that could ever possibly result in a conviction." Finally, to the extent Father argues he should have been advised of the use immunity that applies to admissions made as part of his case plan, it was his counsel's, not the court's, responsibility to so advise him. (D.C. at p. 58.) Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, cited by Father is factually and procedurally inapposite to this case and does not persuade us to reach a contrary conclusion.
C
Father argues that the December 2017 courthouse bathroom incident does not support the juvenile court's orders denying his requests for visitation with Junior and unsupervised visitation or increased supervised visitation with G.D., J.H., and M.D. In so arguing, he asserts the facts regarding that bathroom incident "are not in dispute." We disagree with Father on both points. First, the version of the bathroom incident given by Father and the version given by the children are quite different. Father described the incident as an accidental meeting inside the courthouse bathroom during which Junior and the other children were excited and happy to see him and either hugged or greeted him affectionately. In contrast, Junior reported that when he saw Father in the bathroom, he backed up, but Father approached him and gave him a hug, causing him to scream and feel upset. Second, assuming arguendo that Father's version was correct, there nevertheless remained substantial, if not overwhelming, evidence in support of the juvenile court's orders as discussed above. Father has not carried his burdens on appeal to show that there is insufficient evidence to support the court's order denying his request for visitation with Junior and/or that the court abused its discretion by denying his requests for unsupervised visitation or increased supervised visitation with G.D., J.H., and M.D. (Mark L., supra, 94 Cal.App.4th at p. 581, fn. 5; Cliffton B., supra, 81 Cal.App.4th at p. 423.)
D
Father also argues the juvenile court erred by denying his requests for changes in its visitation orders because the record shows that Mother did not comply with the family maintenance plan and, in particular, did not take G.D., J.H., and M.D. to any therapy sessions and took Junior to only 13 therapy sessions. He further notes that Mother did not participate in a sexual abuse group for nonprotecting parents. He also notes that Mother's housing situation was unstable and she was homeless and had moved frequently. Father criticizes Agency for not requiring Mother to comply with the family maintenance plan and Mother for not taking the case plan seriously. Father also appears to criticize the court's May 2018 finding that Junior needed additional therapy before Junior would be ready for visits with him, despite the fact that Junior's former therapist concluded in March 2018 that Junior did not have anxiety anymore and discontinued his therapy. Father therefore argues, in effect, that the court erred by denying his requests for changes in its visitation orders because the court required Junior to receive further therapy, but neither the court nor Agency enforced the family maintenance plan by ensuring Junior received the necessary therapy (e.g., ensuring that Mother or other persons took him to a therapist for such therapy or that a therapist came to him).
However, by so arguing, Father again misconstrues and/or misapplies the applicable standards of review on appeal. Despite the evidence showing Mother did not comply with all of her requirements under the family maintenance plan and/or failed to take G.D., J.H., and M.D. to therapy and Junior to therapy in addition to his 13 sessions, we nevertheless conclude Father has not carried his burdens on appeal to show that there is insufficient evidence to support the court's order denying his request for visitation with Junior and/or that the court abused its discretion by denying his requests for unsupervised visitation or increased supervised visitation with G.D., J.H., and M.D. (Mark L., supra, 94 Cal.App.4th at p. 581, fn. 5; In re L.Y.L., supra, 101 Cal.App.4th at p. 947; Stephanie M., supra, 7 Cal.4th at pp. 318-319; Cliffton B., supra, 81 Cal.App.4th at p. 423.) In particular, we reject his assertion that the evidence shows that Mother was wrongfully "running down the clock" or, for that matter, there is any such clock or time limitation in family maintenance cases such as this one. (See, e.g., In re Destiny D. (2017) 15 Cal.App.5th 197, 212.)
E
Father argues the juvenile court's order denying his request for supervised visitation with Junior is illusory because the court relied solely on Junior's "stated preference not to have contact with [Father]." In so doing, he argues the court erred by, in effect, delegating to Junior its authority to decide the visitation issue. Father also argues the order is illusory because the court stated it wanted Junior to receive additional therapy before visitation with Father could be allowed, but it was unreasonable to believe that Mother would take him to therapy in the future. Father further maintains in a conclusory manner that there is insufficient evidence to support the court's finding that it would be detrimental to Junior for him to visit Father.
"[T]he power to decide whether any visitation occurs belongs to the court alone." (In re S.H. (2003) 111 Cal.App.4th 310, 317.) The court may not delegate the power to grant or deny visitation to the child, a therapist, or an agency. (In re Ethan J. (2015) 236 Cal.App.4th 654, 661; Julie M., supra, 69 Cal.App.4th at pp. 48-49, 51; In re Christopher H., supra, 50 Cal.App.4th 1001, 1008-1009.) Nevertheless, a child's aversion to visiting a parent may be properly considered by the court provided it is not the sole factor in the court's decision. (In re S.H., at p. 317; Julie M., at pp. 50-51.)
Contrary to Father's assertion, the record shows the court did not rely solely on Junior's preference that he not visit Father when it denied Father's request for supervised visits with him. Rather, the court considered many other factors in making that decision. In particular, the court also considered Father's instant conduct in sexually abusing Junior, Father's continuing denial of that sexual abuse, Father's past history of sexual abuse against other minor children, Junior's bad dreams about Father hurting Mother, Junior's fear of Father, the opinion of Junior's former therapist that he did not believe visitation with Father was in Junior's best interest, and Medina's statement that she did not believe Father had gained any insight from his group therapy sessions and did not recommend visits between Junior and Father. Because the court did not rely solely on Junior's preference in denying Father's request for visitation with him, the court did not delegate its authority to Junior to make the visitation decision. Furthermore, the court found it would be detrimental to Junior to visit with Father at that time. Because, as discussed above, there is substantial evidence to support that finding, the court properly denied Father's request for supervised visitation with Junior. Father's conclusory argument to the contrary does not persuade us otherwise.
Father also argues the order denying visitation with Junior is illusory because the court stated it wanted Junior to receive additional therapy before visitation with Father could be allowed, but it was unreasonable to believe that Mother would take him to therapy in the future. In making its detriment finding and denying Father's request for visitation with Junior, the court stated that Junior "needs additional therapy before we can even come close to that [i.e., visitation with Father]." Based on the record, the court could reasonably conclude that Mother would cooperate with efforts to obtain additional therapy for Junior. Junior had 13 weekly sessions with his former therapist before the therapist discontinued those sessions. There is no reason to believe Mother would prevent Junior from receiving additional therapy in the future. Furthermore, contrary to Father's apparent assertion, the court was not bound by the opinion of Junior's former therapist that further therapy was not needed for Junior. Rather, it is the court's authority, and not that of any therapist or other person, to decide whether visitation should be granted or denied and, if denied, what the case plan should be to help resolve any impediments to visitation in the future. By concluding Junior should receive additional therapy before it would grant Father's request for visitation with him, the court reasonably exercised its discretion and authority to make that visitation decision. Therefore, we conclude the court's order denying Father's request for supervised visitation with Junior is not illusory as Father asserts.
F
Father argues the juvenile court's orders denying his request for unsupervised visitation or increased supervised visitation with G.D., J.H., and M.D. are also illusory because Mother will not comply with the case plan by taking them to therapy, which therapy the court found was needed for them to overcome their fears of unsupervised visitation with Father. For the same reasons as noted above regarding the court's order denying Father's request for visitation with Junior, the court's orders denying his request for expanded visitation with G.D., J.H., and M.D. are not illusory and, instead, protect his right to visit his children. In re Hunter S. (2006) 142 Cal.App.4th 1497, cited by Father, is factually and procedurally inapposite to this case and does not persuade us to reach a contrary conclusion.
DISPOSITION
The orders are affirmed.
HALLER, Acting P. J. WE CONCUR: IRION, J. DATO, J.