In re M.B. CA1/1 filed
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Filed 2/23/11 In re M.B. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE In re M.B. et al., Persons Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, A128872 v. (San Mateo County Super. Ct. Nos. 78152 & 78153) A.B., Defendant and Appellant. Appellant A.B. is the father of two girls, 10-year-old M.B. and five-year-old S.B., who are dependent children of the juvenile court because of Father s physical abuse of the children and their mother. At the dispositional hearing, the court denied Father reunification services and placed the children in the sole custody of their mother, Father s wife N.B. The juvenile court also entered a three-year no-contact restraining order against Father and denied him visitation with the children. Six months later, Father moved to modify the restraining order to permit supervised visitation in a therapeutic setting. The court denied the motion and entered a five-year restraining order. Father contends the court erred by denying him a hearing on his motion, and argues the restraining order is not supported by substantial evidence. We disagree and affirm. 1 I. FACTS This is the third appeal. We take the facts from our prior opinion in the second appeal, in which we affirmed the juvenile court s dispositional findings and orders. (In re M.B. et al. (Sept. 30, 2010, A127111) [nonpub. opn.] (M.B.).) Father was born in Kazakhstan and raised in Russia. He emigrated to the United States and met Mother, an American citizen of Russian ancestry raised by immigrant Russian parents. Father and Mother met when they were both ballet dancers for the Sacramento Ballet. They then founded their own ballet school in Pacifica. Father and Mother were married in a civil ceremony in February 1997, and in a ceremony in the Russian Orthodox Church in October of that year. M.B. was born in 2000, and S.B. in 2005. On March 19, 2008, respondent San Mateo County Human Services Agency (Agency) filed twin dependency petitions on behalf of both children against both parents, alleging that Father had committed serious physical harm against both children on February 21, 2008, and that Mother had failed to protect them. (Welf. & Inst. Code, § 300, subds. (a) & (b).)1 The detention and jurisdiction reports indicated that on February 21, 2008, Father had become upset at Mother while she was cooking and began to kick her and punch her several times in the head, leaving bruises. The children witnessed this abuse. Mother left for work, leaving the children with Father despite the urgings of M.B., then seven, who said she was afraid of Father and begged her not to go. Mother returned from work to find that M.B. had a bloody lip. The child reported that Father had slapped her across the mouth for dropping a computer hard drive. M.B. also told Mother that Father had hit two-year-old S.B. several times for crying. 1 Subsequent statutory citations are to the Welfare and Institutions Code unless otherwise indicated. Subsequent dates are in 2008 unless and until otherwise indicated. 2 Mother remained in the home, with the children, but did contact her priest the next day. Her priest advised her to contact an attorney. The attorney met with Mother, heard the tale of the abuse, and contacted police. Police and Agency investigations revealed that Father had begun emotionally abusing Mother soon after they were married, and had been physically, emotionally, and verbally abusing her for years leading up to the February 21 incident. The children had witnessed the repeated abuse. In addition, Father had punched Mother when she was pregnant with S.B. and frequently hit the children on the face and head when he was upset. When two-year-old S.B. would begin to cry, Father would cover her mouth and hit her repeatedly on the head. Father had threatened the lives of Mother and the children on several occasions and Mother believed the threats were genuine and Father was capable of murdering the family. On February 26, Father was arrested and incarcerated for corporal injury on a spouse/cohabitant (Pen. Code, § 273.5, subd. (a)) and corporal punishment on a child (Pen. Code, § 273d). In an interview with a police officer that same day, Father admitted the argument on February 21, but denied any physical abuse. He said M.B. s bloody lip was sustained while skiing and ice skating in Lake Tahoe, Nevada. He then said he did not know how either child sustained her injuries. On March 19, Father admitted to an Agency social worker that he beat his wife for putting too much oil in the frying pan. He said he was crazy and needs help. He admitted hitting one of the children, presumably M.B., for touching his computer. He admitted he had serious problems and had taken psychotropic medication for depression. The jurisdictional report noted that Father made several statements that he later contradicted. The report also notes Father claimed he had served in the Russian Army in Afghanistan in 1983 and his amphibious vehicle had been blown up near the Afghanistan-Tajikistan border. Father claimed that six soldiers in the vehicle were killed and he had sustained a head injury. Father never told Mother about this incident, because he feared that . . . she would view him as being incapacitated. Father claimed 3 he had been taken prisoner and escaped, then suffered from amnesia and was physically disabled to the point where he had to relearn how to walk. But Father claimed that within four years he was hired as a ballet dancer by the Bolshoi Ballet company and travelled the world.2 Father also admitted to having a long history of mental illness, including auditory hallucinations, and had sought treatment. He claimed the treatment was inadequate, probably largely due to his inability to communicate in English, and his reluctance to admit to his problems. He told the social worker he had been feeling dizzy and nauseated. He said he had lost [his] family. Apparently still a Russian citizen, he also feared deportation to Russia. The Agency s detention report expresses concern for Mother s failure to protect the children from Father s abuse, but the jurisdictional report notes that Mother was in therapy and was seeking therapy for the children. She had filed for divorce and wanted Father out of her life. Despite its initial concerns about Mother s failure to protect, the Agency concluded that she has taken appropriate steps to protect herself and her family, including therapy and divorce. The Agency commended [Mother] for her proactive efforts to obtain therapy services for herself and her two young daughters, and recommended that she be given full legal and physical custody of the children. . . . The jurisdictional hearing was uncontested. Both Mother and Father submitted the issue of jurisdiction on the Agency s reports Mother with a written waiver and Father on an oral representation of counsel. 2 Father s sister, who lives in Russia, doubts Father s story about serving in the military, but confirms that he danced for the Bolshoi Ballet. According to an Agency report, the sister had no knowledge of her brother ever serving in the military, and said that he had always been a ballet dancer. [The sister] stated that it was highly improbable that a talented dancer such as [Father], who had danced with the Bolshoi Ballet at one time, would [ever] have been sent on active duty in the Russian army, even if he had served in the army. According to a subsequent report, Mother confirmed Father was in the army but Father s sister had told Mother that as a talented ballet dancer, [Father] was given only light duties . . . . The government would never endanger such an individual by placing him on the front lines. 4 In anticipation of the court sustaining the petition, Father s counsel asked the juvenile court to order reunification services for her client pursuant to section 361.5, subdivision (a) . . . . (M.B., supra, A127111, pp. 1 4.) The court sustained the dependency petitions and declared the children dependent children. Without holding a dispositional hearing, the court denied Father reunification services based on the bypass provision of section 361.5, subdivision (e)(1), finding that Father was incarcerated [on the criminal charges] and reunification services would be detrimental to the children. The court granted sole legal and physical custody of the children to Mother. Father appealed. [This was the first appeal.] We concluded that Father was entitled to a contested dispositional hearing prior to any order denying him reunification services or granting sole custody to Mother. Accordingly, we affirmed the sustaining of the dependency petitions, but reversed the orders denying services and granting custody. We remanded the matter for the juvenile court to conduct a contested dispositional hearing. (In re M.B. et al. (Jan. 29, 2009, A121730) [nonpub. opn.].) (M.B., supra, A127111, pp. 5 6.) The juvenile court first convened after our remand on April 23, 2009.[3] At that time, Father had served his [custodial] sentence on the criminal charges, but was in INS custody facing deportation proceedings. The court set a dispositional hearing for May 14. The dispositional report indicated that Mother was receiving considerable family support and was active in the Russian Orthodox Church. She and M.B. were still in therapy, while further therapy for S.B. was no longer necessary. Mother reported that the children were doing fine without their father. The Agency reported that [t]he children are safe in the home of their mother. The Agency noted: This is a family which endured many years of progressively worse domestic violence and chaotic behavior by [3] Subsequent dates are in 2009 unless and until otherwise indicated. 5 the father, who had an untreated mental illness. The mother and children lived in a state of constant fear that something they would do might result in another episode of violence. The Agency reported that Mother has done an admirable job of recovering from the crisis which led to the referral, and the children are not in danger. The Agency recommended the court award sole legal and physical custody to Mother. At the dispositional hearing, the Agency and all other parties agreed to a mental health evaluation of Father to see whether . . . section 361.5, subdivision (b)(2) . . . applied in this case, thus empowering the court to deny reunification services to Father [on the ground of mental disability]. The court granted the request and appointed two mental health experts to examine and evaluate Father. . . . (M.B., supra, A127111, pp. 6 7.) On August 28, the Agency filed an addendum report, informing the court that one of the two mental health evaluations had already occurred. On August 19, Dr. Edward Duncan examined Father and found that he suffered from posttraumatic stress disorder, alcohol abuse, depressive disorder, and maladaptive personality traits associated with borderline and antisocial personality disorders. Dr. Duncan concluded that Father would not benefit from reunification services, because he showed little insight into his own psychological makeup, has not accepted his culpability for his abuse of his wife and children, has no understanding of his need for mental-health treatment to prevent future episodes of verbal or physical abuse, has little awareness of the emotional needs and psychological makeup of his children, and did not benefit from service[s] including anger management classes provided during his incarceration. Father also reported no interest in psychotropic medications or psychological counseling. [4] (M.B., supra, A127111, pp. 7 8.) [4] In his interview with Dr. Duncan, Father continued to deny he physically abused Mother. He described the frying pan incident as a flashback where he thought the pan was an explosive device of the type he had used in the army, and he was simply trying to save Mother by covering her with his body. He also denied physically abusing his children. 6 The disposition hearing was set for September 28. In a new addendum report prepared for that hearing, the Agency noted that Father was still in denial over his physical abuse of Mother and his children, was without empathy for them, and showed no signs of contrition. The Agency also observed that Father had told various contradictory stories to explain his beating Mother on February 21, 2008, from being enraged over her cooking techniques to flashing back and thinking the frying pan was an explosive device. Father has not given [the Agency] any proof that he is seeking counseling services to help him with his mental illness, nor has he requested any referrals . . . . He seems to believe that he can persuade the Court that he has always been the victim, and that his prior episodes of violence were actually misguided attempts to save his family members lives. . . . In spite of his wrongdoing and its cruel effects on others, [Father], a master manipulator, consistently tries to portray himself as someone worthy of sympathy rather than rebuke. The Agency also informed the court that the second mental health evaluation had occurred. On September 9, Dr. Amy T. Watt examined Father and concluded he suffered from posttraumatic stress disorder and personality disorder. She concluded he could benefit from services, but noted his unwillingness to take responsibility for his violent behavior, and his tendency to blame his medication instead. She concluded Father had the potential to benefit from reunification services, but only if he was willing to undergo psychological treatment and medication. She further concluded that given his high degree of denial and his strong belief that his medication or other external factors cause his problems, it is going to take significant effort and time to help him acknowledge his role in what has happened to him. His prognosis to benefit from psychotherapy is poor. Improvement may take more than twelve to eighteen months. If Father is cooperative and . . . motivated to change, the prognosis may improve. The Agency continued to recommend that Father receive no services and Mother receive sole custody. The dispositional hearing was continued to December 1. . . . [¶] [T]he Agency social worker and Dr. Watt testified. Father testified he and Mother divorced because a 7 lot of lies were made to him. He testified he was in the Russian army, and that Mother s claim that he was not is, again, lies. He agreed to participate in therapy and medications [i]f the Court deems it necessary, if the doctors deem it necessary. He denied physically abusing Mother on February 21, 2008, or ever threatening to kill her. (M.B., supra, A127111, pp. 8 9.) The court stated that it was very troubled by this case. The court found that Father has serious mental health disorders which have made him not only violent but resistant to change and unable to cope with his past traumas and unable to control the infliction of trauma[] on those around him. The court found Father to be in total denial and referring to his courtroom and witness-stand demeanor, to be a powder keg. The court was in fear for this family even under the best conditions. Even if Father were ready, willing, and able to participate in therapy and other treatment, the prognosis would be, in my view, grim. [I] do not believe, in my ten years here as a dependency judge, that I have seen somebody that I am more concerned about as far as posing a security risk to his family because of the mental health issues. The court ordered the children to be placed in Mother s custody. [I] have no reason to order reunification services to [F]ather. [¶] I am finding that the mental health evaluations . . . provide no exception to the denial of services for him. . . . (M.B., supra, A127111, p. 10.) In the second appeal, Father contended the juvenile court erred by denying him reunification services. We affirmed because the juvenile court was entitled to deny services under section 361.5, subdivision (b)(2) due to Father s mental disability, as attested to by two mental health experts. (M.B., supra, A127111, pp. 1, 11.) II. THE RESTRAINING ORDER AND THE MOTION FOR MODIFICATION On December 22, three weeks after the December 1 dispositional hearing, the juvenile court issued a restraining order against Father, preventing him from having any contact with Mother, M.B. and S.B., and denying him visitation with his two daughters. 8 The restraining order was imposed for three years, and would expire on the third anniversary of the dispositional hearing, December 1, 2012.5 Six months after the dispositional hearing, on June 1, 2010, Father filed a motion to modify the restraining order to permit supervised visitation in a therapeutic setting.6 As changed circumstances justifying modification, Father listed: In the past 6 months, Father has followed probation orders and has not had any further police contact.[7] [¶] Father is making progress in individual therapy with Arthur Digilov in San Francisco. [¶] Father continues to love and miss his children. [M.B.] and [S.B.] have made progress in therapy such that [S.B.] has completed hers and [M.B.] is tapering off through the summer. The record contains a brief letter from Arthur Digilov, M.D., a therapist and case manager with a community mental health center, stating that Father had been in biweekly therapy sessions since May 3. The letter also notes that Father has attended three on[e] hour individual sessions for preliminary assessment and development of treatment plan which would include impulse control and domestic violence issues. [Father] has been consistent with his appointments and demonstrated good attendance and punctuality. 8 Father contended the modification would be in the best interests of the children because they would benefit from knowing that, whatever happened 2 years ago, their father still loves them and wants to be a part of their lives. Father argued therapeutic visitation would provide a healthy environment in which [he] can demonstrate to his 5 The restraining order was not at issue in the second appeal. 6 Subsequent dates are in 2010 unless otherwise indicated. 7 Father was still on probation for the criminal charges arising from the abuse in this case. 8 The record also contains a certificate of completion of a 20-hour domestic violence and parenting education course. The certificate is dated February 2009. The Digilov letter and the certificate were attached to Father s motion for modification. They were presented to the court at the hearing on the motion to modify. 9 children that he loves them and is sorry that they feel afraid of him if, in fact, they are afraid. The children will learn that he is not going to harm them or their mother. Father requested that his motion for modification be heard on June 2, at the scheduled six-month family maintenance review hearing conducted pursuant to section 364. The status review report prepared for that hearing indicates that Father was performing fairly well on probation, and there had been no calls to the police department from the family home in the previous six months. Mother did report that on May 5 someone placed a ticket for a ballet performance on May 7 her birthday under the door of her ballet studio. The ticket smelled of Father s cologne. The police took no action because there was no evidence to determine who placed the ticket under the door. The report noted that S.B. was no longer in therapy and M.B. was continuing individual therapy with Dr. Lorita Bank. Dr. Bank reported that M.B. s symptoms of Post Traumatic Stress Disorder (PTSD) have pretty much resolved or plateaued at this point, but may recur in the future when M.B. encounters other stressors or . . . begins having relationships with men. In Dr. Bank s opinion, any contact between [M.B.] and her father will likely trigger [M.B. s] PTSD symptoms and she would not recommend contact between [M.B.] and her father at this time. Because Mother had demonstrated to the Agency that she could protect the children and keep them safe, and because there was an outstanding restraining order against Father, the Agency recommended that the juvenile court terminate dependency status and grant sole legal and physical custody of the children to Mother. At the outset of the June 2 hearing, Mother s attorney announced her opposition to Father s motion for modification and asked the court for a five-year restraining order preventing any contact between Father and Mother and the children. As argument proceeded, Father was apparently disruptive. The juvenile court interjected: Hang on a second. [¶] Sir, if you can t control your behavior in my courtroom then how can you expect me to believe you can control your behavior with your children? Stop that. At the conclusion of the hearing, the court denied Father s request for a contested hearing on his motion to modify, and denied the motion. The court then terminated 10 dependency, granted sole legal and physical custody to Mother, and imposed a five-year restraining order, to expire June 2, 2015. III. DISCUSSION Father contends the juvenile court erred by denying his request for a contested hearing on his motion to modify, and the five-year restraining order is not supported by substantial evidence. 9 We disagree for the reasons set forth below. A parent of a dependent child may petition the juvenile court under section 388 for a modification of a prior order. (§ 388, subd. (a).) To obtain a hearing on the petition, the parent must make a prima facie showing of both changed circumstances and that the requested modification would be in the best interests of the child. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079 (C.J.W.).) If the parent does not make a prima facie showing, the juvenile court may deny the request for modification without a hearing. (Cal. Rules of Court, rule 5.570(d).) We review such a denial for abuse of discretion. (C.J.W., supra, at p. 1079.) The factual evidence shows the juvenile court did not abuse its discretion. As far as changed circumstances, Father demonstrated only that he was performing well on probation and had been briefly involved in therapy. These developments were insufficient to overcome the serious reasons why the juvenile court granted sole custody to Mother a lengthy and traumatic pattern of physical and emotional abuse caused by Father s serious mental disability. Expert opinion supported the grave concerns. And Father failed to demonstrate a prima facie case that the requested visitation would be in the best interests of the children. M.B. s therapist made it quite clear that renewed contact with Father would trigger her PTSD symptoms. The juvenile court did not abuse 9 Father also seems to argue that the juvenile court erred by terminating dependency. But he seems to base that argument on the possibility that we would find error in the denial of reunification services. The prior appeal, A127111, was still pending when Father filed his opening brief. As noted, we upheld the denial of services, rendering moot Father s challenge to the termination of dependency. 11 its discretion by denying Father s request for a contested hearing on his motion to modify, and by denying the motion.10 Contrary to Father s claim, there is substantial evidence to support the five-year restraining order. Father has a lengthy history of mental illness and has been physically and emotionally abusing his family for several years. His mental health evaluations showed he had little insight into his psychological problems and an unwillingness to take responsibility for the abuse. M.B. s therapist warns that renewed contact with Father would trigger her symptoms of PTSD. We again refer to the comments of the juvenile court, who had the opportunity to observe Father s courtroom demeanor. The court was very troubled by this case. The court found that Father has serious mental health disorders which have made him not only violent but resistant to change and unable to cope with his past traumas and unable to control the infliction of trauma[] on those around him. The court found Father to be in total denial and, referring to his courtroom and witness-stand demeanor, to be a powder keg. The juvenile court was in fear for this family even under the best conditions. Even if Father were ready, willing, and able to participate in therapy and other treatment, the prognosis would be, in my view, grim. Citing its 10 years experience as a dependency judge, the court did not believe that it had seen somebody that I am more concerned about as far as posing a security risk to his family because of the mental health issues. (M.B., supra, A127111, p. 10.) 10 Father appears to argue that section 388, and its requirement of a prima facie showing, essentially is inapplicable here because the juvenile court was considering termination of jurisdiction. (See, e.g., In re Roger S. (1992) 4 Cal.App.4th 25, 29 31 (Roger S.).) This argument was not raised below. Indeed, Father relied on the standard Judicial Council Forms, form JV-180, based on section 388 and referred to his motion as a 388 motion at the June 2 hearing. In any case, as we read Roger S., a court considering termination has the power to hear new evidence in order to modify prior orders but presumably only after a prima facie showing. (See Roger S., supra, at pp. 29 30.) 12 Little had changed between the time the court made these comments and the imposition of the five-year restraining order. The order is supported by substantial evidence.11 IV. DISPOSITION The findings and orders of the juvenile court are affirmed. ______________________ Marchiano, P.J. We concur: ______________________ Margulies, J. ______________________ Banke, J. 11 Nothing prevents Father from seeking a modification of the restraining order in the future, after a suitable passage of time with continued therapeutic treatment. He will, of course, have to make the necessary prima facie showing under section 388. 13
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