In Re Natasha A.
RICHLI, J.
In this juvenile dependency case, the juvenile court found that Wayne A. had sexually molested his daughter, Natasha A.; it denied Wayne any visitation. In a previous appeal by Wayne, we affirmed the denial of visitation.
While Wayne‘s first appeal was pending, however, he made a request for supervised visitation, which the juvenile court denied. Later, the juvenile court declined to hold review hearings while the appeal was pending, and took the case off calendar instead. In this appeal, Wayne challenges both thesе actions.
We hold that the juvenile court properly denied Wayne‘s request for supervised visitation, because Wayne made the request orally and not by way of a petition showing changed circumstances under Welfare and Institutions Code section 388,1 and because even Wayne‘s oral request failed to show any relevant changed circumstances; but we also hold that the juvenile court erred by refusing to conduct review hearings while the first appeal wаs pending.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 1992, the Riverside County Department of Public Social Services (DPSS) filed a juvenile court petition alleging that Natasha A. (born Feb. 27, 1988), as a result of having been sexually abused by her father, Wayne A., came within
On February 11, 1993, following a contested jurisdictional hearing, the juvenile court found that Wayne had sexually abused Natasha. It adjudged her a dependent child of the court, and “eliminated” visitation by Wayne.
On May 18, 1993, Wayne filed a notice of appeal from the orders entered at the dispositional hearing (In re Natasha A., case No. E012488).
On August 3, 1993, the social worker reported that she had had no contact with Wayne, and had received no proof that he was receiving treatment as required. She recommended that the dependency be terminated. However, in a supplemental report on August 19, 1993, she changed her recommendation, explaining: “Since this case is being appealed [d]ependency of the minor can not be terminated at this time.”
By January 25, 1994, the social worker still had had no direct contact with Wayne. However, she reported that Wayne had enrolled in Parents United on July 29, 1993. He had attended a second session (a social event) on August 5 and a third on September 9, then stopped attending. She concluded that he had made “no progress ... towards resolution of his problem.” Nevertheless, she stated: “There ... continues to be a need for Court supervision of Natasha A[.] until the Appeal E 012488 filed by the father, Wayne A[.], is determine[d].”
On February 22, 1994, at the 12-month review hearing, Wayne submitted a letter from a therapist stating that he had begun attending individual therapy sessions on September 15, 1993, and as of the date of the letter, which was October 12, 1993, he had not missed any. At the end of the hearing, the juvenile court continued its previous orders in effect.
On July 8, 1994, the social worker reported that she still had had no contact with Wayne, and had received no confirmation that he was receiving treatment. However, she stated: “The appeal filed by Mr. A[.] has not been settled as yet. For this reason the case will continue in Family Maintenance.”
At the 18-month review hearing on July 27, 1994, Wayne requested supervised visitation with Natasha. He submitted a letter from his therapist
On August 29, 1994, Wayne filed a notice of appeal from this order (сase No. E014958).
A further review hearing was noticed for January 18, 1995. However, DPSS failed to file a report prior to the hearing. (See
On March 17, 1995, Wayne filed a notice of appeal from this order (case No. E015967). On April 5, 1995, we ordered cases No. E014958 and E015967 consolidated.
On May 10, 1995, we issued our opinion in No. E012488 (nonpub. opn.). We affirmed the juvenile court‘s original denial of visitation; we held that the provision regarding future visitation simply meant that “Natasha should not be forced to visit with Wayne against her will,” and that both Natasha and her therapist could have input on visitation issues. We observed thаt Wayne could file a petition to modify the visitation order pursuant to
II.
THE DENIAL OF WAYNE‘S REQUEST FOR SUPERVISED VISITATION
(1a) In case No. E014958, Wayne contends that the juvenile court erred at the 18-month review hearing by denying his request for supervised visitation.
(2) Preliminarily, DPSS contends that orders granting or denying visitation are not appealable. This contention is simply frivolous. We have repeatedly held that the order entered at the dispositional hearing is a final
DPSS relies on In re Steven H. (1992) 6 Cal. App.4th 1752 [8 Cal. Rptr.2d 535], in which the court refused to hear an appeal from the visitation provisions of an order setting a section 366.26 hearing. (In re Steven H., supra, 6 Cal. App.4th at pp. 1757-1761.) Steven H. is inapplicable, for two reasons. First, the decision was expressly premised on former
(1b) On the merits, although Wayne purports to concede for purposes of this appeal that the original order denying him any visitation was valid, implicitly he challenges that order by arguing that the juvenile court was statutorily required to allow him visitation. He relies on
DPSS contends that the only way Wayne could obtain a change in visitation was by filing a petition under
The juvenile court is forbidden to change, modify, or set aside its previous orders without advance notice to the minor and to DPSS. (
If, as here,3 the minor is not removed from his or her parent‘s physical custody, the juvenile court still must hold periodic review hearings; however, those hearings are governed by
This conclusion is supported by In re Elaine E. (1990) 221 Cal. App.3d 809 [270 Cal. Rptr. 489]. There, four minors were declared dependents after their father sexually molested one of them. They were placed in their mother‘s physical custody; eventually, their father was allowed supervised visitation with them. (Id., at p. 812.) At a subsequent review hearing, the probation officer recommended that the father be allowed unsupervised visitation; the juvenile court, however, was inclined to dismiss the case instead. The father asked for an opportunity to present evidence on the visitation issue. The juvenile court refused to hear such evidence, denied unsupervised visitation because the father had failed to show changed circumstances, and dismissed the case. (Id., at pp. 812-813.)
The appellate court held: “[A]ppellant was not entitled to present evidence on the issue of visitation either at a review hearing, a termination hearing, or
As Wayne points out, In re Roger S. (1992) 4 Cal. App.4th 25 [5 Cal. Rptr.2d 208] disagreed with Elaine E. In Roger S. (as in Elaine E.), the juvenile court refused to take evidence on visitation at a
Roger S., then, did not take issue with the holding or reasoning of Elaine E. when applied to a
In the alternative, however, assuming for purposes of argument that Wayne‘s oral request for supervised visitation was effective, the juvenile court‘s denial of the request was still proper because Wayne failed to show sufficient changed cirсumstances. The juvenile court originally denied visitation because it found it “very clear ..., certainly beyond the standard of a preponderance of the evidence,[4] that the child ... has been sexually abused and I believe there is a substantial risk that she will be sexually abused were she to have visitation with [Wayne].”
“Mr. A[.] initiated therapy on September 15, 1993.... [¶] I have seen Wayne a total of sixteen one-hour sessions. Mr. A[.] took a leave from therapy on December 12, 1993 and returned to therapy on May 5, 1994.
“Mr. A[.] had also been court-ordered to attend the Parents United group for perpetrators of sexual abuse. Mr. A[.] chose not to attend these because he found them to be very offensive. Mr. A[.] has stated repeatedly and emphatically that he is not a child molester, and says he did not molest Natasha.
“Mr. A[.] does not appear to fit the profile of a pedophile.... I have no evidence which indicates that Mr. A[.] presents a danger to his child.”
The therapist claimed to have no evidence that Wayne would molest Natasha, but she likewise offered no substantial evidence that he would not. Her lukewarm observation that he did not “appear” to fit the profile of a child molester was insufficient to overcome the “very clear” evidence — the sufficiency of which Wayne has never challenged — that he had in fact molested his daughter repeatedly. Moreover, the letter showed that Wayne had done nothing to come to terms with the issue. He had not gone to Parents United; he had not gone regularly or consistently to his own therapist; and he persisted in refusing to admit the molestations.
As we held in the first appeal, the juvenile court was not necessarily bound by the provision that Wayne could not have visitation until Natasha was willing and her therapist determined that it would be in her best interests. Moreover, it was not necessarily bound to deny Wayne visitation simply because he had molested Natasha, or even because he denied doing so. Nevertheless, it was significant that there was no evidence that any of these circumstances had changed, and no other new evidence that visitation would be in Natasha‘s best interests. We need not decide precisely what hypothetical showing might have justified an order permitting visitation. It suffices to note that Wayne failed to offer any evidence whatsoever of any relevant change of circumstances.
Wayne claims the juvenile court denied his visitation request only because the appeal was pending, but this mischaracterizes the court‘s ruling. It did ask, “Isn‘t it the fact that everything‘s on hold until [the appeal is] resolved?” However, as we read the record, it went on to deny Wayne‘s request because (1) the original order denying visitation had not been
III.
THE SUSPENSION OF REVIEW HEARINGS DURING THE FIRST APPEAL
(3) In case No. E015967, Wayne challenges the order issued at the subsequent review hearing. He contends that the juvenile court erred by failing to conduct a review and by taking the casе off calendar because his appeal in case No. E012488 was pending. Natasha concurs.
Preliminarily, In re Natasha A., supra, No. E012488 has since been decided. The juvenile court may already have placed the case back on calendar. On the other hand, it may have continued to keep the case off calendar because Wayne‘s appeals in cases No. E014958 and E015967 are now pending. We considered requesting further briefs from the parties, advising us on the status of thе case below and addressing the possibility that this issue may be moot. On further consideration, however, we believe the issue, even if otherwise moot, comes within the exception to the mootness doctrine for issues of substantial public interest which are capable of repetition, yet evade review. (See Alfredo A. v. Superior Court (1994) 6 Cal.4th 1212, 1218-1219 [26 Cal. Rptr.2d 623, 865 P.2d 56]; In re Mark C. (1992) 7 Cal. App.4th 433, 440 [8 Cal. Rptr.2d 856].) We therefore turn to the merits.
DPSS has cited no authority for suspending review hearings while an appeal is pending, and we know of none. As long as a minor remains a dependent of the juvenile court, the court is statutorily required to hold review hearings every six months. As we noted in part II, ante, if the minor has been removed from his or her parent‘s physical custody, review hearings
It is true that as a general rule, an appeal stays further proceedings in the trial court regarding matters embraced in or affected by the judgment or order appealed from. (
However, the general rule is expressly made subject to a number of statutory exceptions. One of these is
We do not mean that the juvenile court was fated to hold a succession of ritualistic review hearings until the appeal was finally decided. The purpose of review hearings under
At a review hearing, as DPSS notes, the “[f]ailure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.” (
DPSS had not filed the required report, however, so the juvenile court had no way of knowing whether Wayne was at last participating in court-ordered treatment. Moreover, its order taking the case off calendar prevented Wayne from ever showing that he was participating in treatment. Finally, even assuming Wayne had not participated in treatment and never would, that fact would merely raise a rebuttable presumption that continued supervision was necessary; the juvenile court could nevertheless determine that a suitable exit order would eliminate the conditions that originally led it to assume jurisdiction and render continued supervision unnecessary.
We conclude that by declining to conduct review hearings while the first appeal was pending, the juvenile court erred.
IV.
DISPOSITION
The order entered after the 18-month review hearing is affirmed. The order taking the case off calendar, entered after the further review hearing, is reversed.
Hollenhorst, Acting P.J., and McDaniel, J.,* concurred.
On February 27, 1996, the opinion was modified to read as printed above.
Notes
“If it appears that the best interests of the child may be promoted by the proposed change of order ..., the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to such persons and by such means as prescribed by Section 386....”
“I don‘t find this letter to be helpful, frankly. He voluntarily suspended therapy from December 12, ‘93 to May 5, ‘94, which you know, if he‘s correct, then that‘s understandable. If not, it‘s a big mistake, so the matter is continued in the present status.”