Filed 5/24/13 M.S. v. Superior Court CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



M.S.,

         Petitioner,                                                     E058081

v.                                                                       (Super.Ct.No. J234416)

THE SUPERIOR COURT OF                                                    OPINION
SAN BERNARDINO COUNTY,

         Respondent;

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for extraordinary writ. Cheryl C. Kersey,

Judge. Petition denied.

         Law Offices of Allen S. Remes and Allen S. Remes for Petitioner.

         No appearance for Respondent.

         Jean-Rene Basle, County Counsel, Kristina M. Robb and Adam Ebright, Deputy

County Counsel, for Real Party in Interest.

                                                             1
       In this petition M.F. (Father), the father of the dependent minor child M.S. (the

minor), challenges an order setting a “selection and implementation” hearing pursuant to

Welfare and Institutions Code section 366.261 with a consideration of adoption.2 Insofar

as his contentions are properly before this court, we find no error and deny the petition.

                                STATEMENT OF FACTS3

       The minor came to the attention of real party San Bernardino County Children and

Family Services (CFS) in August of 2010 after her older sister, A.L., reported that she

had been sexually abused by Father, A.L.‟s stepfather. A dependency petition on M.S.‟s

behalf was filed alleging “failure to protect” and “sexual abuse of sibling” (§ 300, subds.

(b) and (d).) A.L. was 16 at the time and M.S. eight. A.L. reported that Father sexually

fondled her and otherwise molested her; M.S. reported that Father “washes her up” in the

shower. Law enforcement personnel informed the social worker that there was domestic

violence and substance abuse in the home. The parents‟ home appeared generally

adequate, although there was little food as they had run out of money late in Father‟s pay

period.

       After a contested jurisdictional/dispositional hearing completed on January 12,

2011, the court found M.S. to come within multiple provisions of section 300, including


       1   All subsequent statutory references are to the Welfare and Institutions Code.

       2   Mother (also M.S.) is not a party to this petition.

       3 Because our resolution of the case depends primarily on legal issues, we omit a
detailed description of the factual and procedural history of the case except as relevant to
the issues.


                                                2
subdivision (d) in that she was at risk of sexual abuse because A.L. had been molested by

Father and he had behaved inappropriately, in a sexual context, with M.S. M.S. was

continued in foster care, in which she had been placed following detention. Reunification

services were ordered for both parents. Father was ordered to participate in counseling

concerning his role as a sexual abuser and domestic violence, as well as parenting and

drug testing.

       The six-month report filed on July 1, 2011, reflected that M.S. had adjusted well to

her foster placement although she did “not understand what appropriate father/daughter

boundaries are.” The social worker had submitted referrals for the required counseling to

Catholic Charities, but it was reported that Mother and Father had not been contacted. In

June of 2011 Father told the social worker that he and Mother had independently enrolled

in domestic violence and parenting classes. However, both he and Mother continued to

deny the allegations of sexual impropriety. Services were ordered continued for another

six months.

       By the time the 12-month report was filed in early January 2012, the social worker

indicated that Father had made “some . . . moderate progress.” It was noted that the

parents had refused to accept the services arranged by CFS but had attended services “of

their own choosing.” A psychologist arranged by CFS had telephoned several times to

make an appointment, but there was no answer. When finally reached, Father refused to

attend because he was working, although the psychologist offered evening appointments.

Additional referrals for evening sessions approved by CFS were also rejected. Even

more troubling to the social worker was the fact that the therapist who was providing


                                            3
services to Father expressed disdain for the jurisdictional findings of sexual abuse and

told the social worker that she did not believe Father had abused A.L.

       Despite this, the report recommended the continuance of services. However, in an

addendum filed about a month later, the recommendation was changed to termination of

services. The social worker stated that although a letter had been received from the

parents‟ therapist, notably absent from the recital of progress and goals was any issue of

sexual abuse. It was also briefly indicated that M.S. was now disclosing instances of

sexual abuse. A subsequently filed report elaborated that M.S. had been observed placing

objects in her vagina and that she had told her foster mother that her parents used to

“„take turns‟ playing with her (putting objects in her vagina) and they used to „join her in

the bathtub or in her bed.‟” M.S. also told the social worker that her parents had touched

her “private parts” in the bathtub and “it hurt;” she also said that this took place from the

age of four until her eighth birthday, when she told them to stop. Also provided to the

court was a report from a family therapist who was working with M.S., and who noted

that M.S. demonstrated several signs of abuse such as excessive masturbation and

bedwetting.

       The court found that the parents have failed to participate regularly and make

substantive progress in the reunification process and terminated services as of May 31,

2012. No appellate review was sought. The court also found that M.S. was not adoptable

and did not schedule a hearing pursuant to section 366.26.

       Next, on November 20, 2012, Father filed a request for modification under section

388 in which he asked to have M.S. returned to his custody. He presented certificates


                                              4
from a domestic violence class and a parenting class, as well as the letter from his

therapist previously filed by the social worker. Also attached was the transcript from an

interview conducted with M.S. in February of 2012 in which she arguably disclaimed any

abuse.4 Finally, Father submitted a “psychosexual assessment,” which concluded that he

showed no signs of interest in “prepubescent” children5 and did “not appear to

demonstrate a deviant sexual interest.” The assessor found that the “probability” that he

had molested A.L. and would molest M.S. was “low.”

       Father‟s request was heard in connection with a status review hearing. (§ 366.)

The minor was called to testify and said that she wanted to see Mother again, but that “I

don‟t miss them.”6 She testified that her last visit with Father, perhaps three months

earlier, “went good,” but she felt “okay” when the visit ended. She also agreed that she

had generally felt “safe” when living with her parents.

       After hearing all the testimony—including from the foster mother—the court

determined that a hearing should be held under section 366.26, but reinstated visits with

Mother. Father‟s request was implicitly rejected.



       4In this interview M.S. denied that her parents had put any objects in her vagina,
and she described the “touching” in a manner which could be construed as non-sinister
bathing and cleaning assistance. Her testimony was also consistent, however, with a
reluctance to discuss the matter with a stranger. The transcript had already been
introduced during the proceedings relating to the 12-month hearing.

       5Although M.S. is prepubescent, A.L. was apparently an adolescent during the
time she was abused by Father.

       6   Inquiry into the abuse allegations was prohibited by the court.


                                               5
       In this petition Father appears to argue that services were inadequate—that is the

gist of the authorities he cites—but he also contends, or at least suggests, that no abuse

occurred and that the minor should have been returned to his custody because he had

completed every program. His claims are without merit.

                                    DISCUSSION

       First, as CFS points out, Father did not seek review of the order terminating

reunification services which was made in May of 2012. At that time, the court found that

reasonable services had been provided. Interlocutory appeal of orders subsequent to the

jurisdictional/dispositional “judgment” is the rule in dependency proceedings. (§ 395; In

re S.B. (2009) 46 Cal.4th 529, 532.) As no hearing under section 366.26 was set at that

time, Father could have challenged this finding (and the subsequent termination of

services) by appeal. (See In re Julie M. (1999) 69 Cal.App.4th 41, 43.) His attempt to

raise the issue almost a year later in connection with a section 366.26, subdivision (l)

hearing is unavailing. We also note that the termination of services was not based upon

the conclusion that Father had not participated in services, which could have been due to

the unavailability of adequate services. Father did participate in services, but the court

found that he had not benefitted, and this is directly attributable to Father‟s failure to

engage with a therapist who would help him explore the issues relating to the

jurisdictional findings, not to the absence of adequate referrals.

       Secondly, insofar as Father directly asserts that M.S. should have been returned to

his custody, this position is also meritless. As we have suggested above, the difficulty is

that by the time the trial court held the current status review and considered Father‟s


                                               6
modification request, it had long since decided, by an unchallenged jurisdictional finding,

that Father did sexually abuse A.L., and at the least behaved inappropriately with M.S.

during bathing. The court‟s refusal to accept new evidence attacking this finding was

perfectly proper. Given the jurisdictional finding, it was incumbent upon Father to at

least make efforts to educate himself about the sexual abuse of children and to explore in

therapy the boundaries of appropriate parent-child behavior. It was not Father‟s place to

decide that he did not need therapy or counseling regarding conduct which the trial court

found did occur.

                                     DISPOSITION

       The petition for writ of mandate is denied.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               HOLLENHORST
                                                                                Acting P. J.

We concur:


RICHLI
                          J.


MILLER
                          J.




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