1 Filed 1/15/14 In re J.S. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re J.S., a Person Coming Under the Juvenile Court Law.

MARIN COUNTY HEALTH & HUMAN SERVICES, Plaintiff and Respondent,

v. J.S., et al., Defendants and Appellants. A137671
(Marin County Super. Ct. No. JV25193A)

J.S. (Father) and A.R. (Mother) appeal an order of the juvenile court continuing its supervision of their daughter, J.S. (Minor) an d requiring Father to submit to a polygraph test as part of his service plan. We shall affirm the order.
I. BACKGROUND We are familiar with the background of th is case through our review of an earlier appeal in this matter, which challenged juri sdictional and dispositional orders of the juvenile court with respect to Minor. ( In re K.S. (Mar. 26, 2012, A131951) [nonpub. opn.].) 1

1 We take judicial notice of the record on appeal in In re K.S. , A131951.2 As we explained in In re K.S. , Marin County Health an d Human Services (the Department) filed petitions in October 2010 pursuant to Welfare and Institutions Code 2

section 300 on behalf of two ha lf-sisters, then 12-year-old K.S. and then two-year-old
Minor. Mother is the mother of both K.S. and Minor. Father is K.S.’s stepfather (and paternal uncle) and Minor’s father. Ev idence from the jurisdiction report and the jurisdictional hearing indicated K.S. had told a social worker th at Father had been touching her inappropriately for three years. He had touched her on her knees and thighs,
and had tried to touch her on her breast and between her legs . K.S. reported Father had touched her on her “ ‘ private pa rt,’ ” and had “ ‘put his penis in [her] private.’ ” K.S. also reported that Father would look thro ugh the curtain in he r room when she was changing her clothes. 3 At the jurisdictional hearing, K.S. testified that Father had
intercourse with her on more than one occasi on. On one of these occasions, as she told him to stop, Father said, “ ‘Oh no, you’re gonna see how good it feels having it, having sex.’ ” Minor was sleeping in the bedroom on a couple of o ccasions when Father
molested her. Mother would call K.S. “ ‘a sl ut, a whore, a prostitute’ ” because she went out with boys, and K.S. testified that Mother hit her regularly and yelled at her without provocation. Mother and Fa ther would hit Minor. There was conflicting eviden ce about whether K.S. told Mother that Father had sexually abused her. Mother to ld a social worker she thought K.S. was lying in order to separate Mother and Father or because Father had restricted her tele vision and radio use. Mother later expressed uncertainty about wh ether the abuse had taken place. Father denied having sexually abus ed K.S. However, Mother had sought and obtained temporary orders restraining Father from having contact with the children except courtordered visitation a nd reported that he had move d out of the family home.

2 All undesignated statutory references ar e to the Welfare and Institutions Code.

3 At the time, Mother, Father, K.S. and Minor shared a bedroom, which contained a bunk bed and a separate bed, with a curtain between the beds. Mother had told a police officer she slept in the separate bed, K.S. slept on the top bunk, and Father and Minor slept on the bottom bunk.3 The juvenile court found K.S.’s testimony “ ‘compelling, credible, and trustworthy,’ ” found that Mo ther not only had failed to protect K.S. but would also fail to protect Minor, and found it had ju risdiction over both children. After a dispositional hearing, the juvenile court continued Minor in foster care.
Both Mother and Father received reunification services for Minor. Mother and Father appeal ed the jurisdictional and di spositional orders, and in In re
K.S. , we affirmed the orders, c oncluding they were supported by substantial evidence. In doing so, we concluded that the evidence suppor ted a conclusion that Father’s actions in sexually abusing K.S. placed Minor at risk of harm. ( In re K.S. , supra , at p. 18.) In August 2011, the juvenile court gr anted the Department discretion to place Minor in Mother’s care, and Mi nor returned to Mother at the end of that month. K.S.
remained in foster care. A report prepared for a September 2011 si x-month status review hearing indicated that Father had participated in sex offend er therapy because it had been mandated by the court in order for him to reunify with Minor, but that he continued to maintain that he had not engaged in any sexually inappropriate behavi or with K.S. Father said he had treated group therapy as an opportunity to learn ab out the mistakes of others, but he did not believe it was necessary for his own rehabilita tion or for the healing of his family. Father’s therapist reported that Father had been consistent in denying that he had done anything inappropriate; the therapist believed there was a “50/50 chance” that Father had behaved inappropriately toward K.S. Fath er had expressed interest in taking a lie detector test, something the therapist said mo st clients would be afraid to take. The juvenile court continued its jurisdiction over Minor and ordered continued family
maintenance services. The Department prepared a status re port for a March 2012 family maintenance review hearing. (§ 364.) The report indica ted that Minor was still living in Mother’s care, and that Mother’s parenting skills ha d improved. Father had attended his sex offender group therapy regularly, and contin ued to deny having be haved inappropriately toward K.S. or Minor. The gr oup therapist stated that Fath er had been cooperative in4 therapy and had participated in the group, an d recommended that Fath er return home and continue to receive family ma intenance services. Mother be lieved the family therapy she had been attending had improve d her skills as a parent, did not believe the dependency case should continue, and believed she could “b e protective” if Father returned to the
home and that Minor would be safe with him. The juvenile court continued its supervision of Minor, ordered continued family maintenance services, and allowed Father
to return to the home. 4 In preparation for a status review hear ing, the Department filed a report in September 2012, noting that Minor was living with Mother and Father. Mother reported
that Minor and Father had a positive relationship, Minor ha d told a social worker she liked playing with Father, and the social worker said their ga mes appeared to be appropriate. Father, Mother, and Minor had attended family therapy, and Mother was attending individual therapy. Mother’s ther apist reported that Moth er said she provided constant supervision of Minor, and the therap ist believed Mother would seek help if she saw anything of concern. Fa ther had been allowed to leave his group sex offender therapy at the end of April 2012. He ha d not acknowledged behaving inappropriately toward K.S. Father had begun individual sex offender therapy in May 2012, but had found it difficult to attend consistently because of health problems, and had participated since about August 2012. Father’s individual therap ist was concerned that Fath er seemed to have no empathy for K.S., and said that empathy was a “barrier to abuse.” She told the social worker that Father had “not met any of th e goals of therapy including understanding the cycle of abuse, understanding patterns and im pulses that cannot be controlled, acquiring skills to work with trigge rs, developing empathy for the victim , and repairing the relationship.” She said that “if [Father] did not receive the treatmen t that he needed, and was actually a sex offender, he would offend again.” Th e therapist recommended that

4 The court also ordered a permanency planning hearing for K.S. pursuant to section 366.26. In doing so, it noted that it c ontinued to believe K.S .’s version of events over that of Father.5 Father submit to a polygraph test for therapeutic purposes; such a test could be used as “a way to confront clients about their denial, encourage them to be honest, and to be accountable for their actions,” and recommended that Father continue his treatment to prevent possible recidivism. The therapist recommended that Father not see Minor changing clothes, and that he not provide se xual education to Minor. Mother agreed to abide by these recommendations. The Court Appointed Special Advocate (CASA) recommended that the case be dismissed. Among other things, the CASA stat ed that Mother appear ed to have applied many of the positive parenting techniques she had learned, and that the bond between Father and Minor appeared strong. The Department filed an addendum report in December 2012. According to this report, Minor told a social worker at the e nd of September that she slept with Father.
Minor asked the social worker not to tell he r former foster parent because the former foster parent would take her away from her home if she knew. Minor also told the social worker she would change clothes in front of Father, and asked the worker not to tell the former foster parent. Minor said that ne ither Father nor anyone else had touched her inappropriately. The social worker spoke w ith Mother, who said Minor wanted Father by her side, and that Father stayed with Mino r in bed until Minor fell asleep. Mother and Father would then switch places , so that Mother slept with Minor and Father slept alone. Mother denied that Minor changed clothes in front of Father. Mother agreed to comply
when the social worker told her Father could not sleep with Minor. The addendum report also explained that, in October 2012, Minor told the social worker “that she no longer sleeps with her fa ther however then sh e stated that she ‘sometimes’ sleeps with her father.” When this happened, according to Minor, Father
was clothed and Minor was wear ing a nightgown or pajamas, and Father touched only her arms. Minor did not report any inappropri ate play. Mother said Minor had not been sleeping with Father. The social worker as ked Father about sleeping in the same bed with Minor, and Father said he “felt this ha[d ] been made into a big issue when it was just a small thing.” He believed it was natural for a father to sleep with his young children,6 and that it was “ ‘crazy’ ” to think he would harm his daughter. He also said Minor was having trouble adjusting to the new routine of not sleeping w ith Father, but that he and
Mother had been firm abou t enforcing this rule. Finally, the addendum report explained that Father stated that he would be willing to take the polygraph as long as he did not have to pay for it. 5 At a contested review hearing, the social worker tes tified that Father’s sex offende r therapist was concerned that Father had made so little progress and that a polygraph would a llow him to be more honest and make more progress within his ther apy. She also said that if the polygraph
test indicated there had been no sexual abus e, there would be no reason to keep the dependency case open. If the test indicated sexual abuse had occurred, the information would be used only in a ther apeutic setting, and the social worker would recommend that the Department provide six months more of services and that Father continue to participate in individual sex offender therapy. The Department would have the results of the polygraph test, and the soci al worker did not know wh ether the results would be included in any report to the court. The juvenile court continued its jurisd iction over Minor, finding that conditions that would justify the initial assumption of ju risdiction under secti on 300 still existed or were likely to exist if supervision were withdrawn. The court continued family maintenance services pursuant to an updated case plan, which incl uded the requirement that Father submit to a polygraph test.
II. DISCUSSION
A. Continued Jurisdiction Appellants contend there is no substantial evidence to support the juvenile court’s finding that Minor was at continued risk of ha rm in the absence of court supervision. “In reviewing the sufficiency of the evidence on appeal, we lo ok to the entire record for substantial evidence to support the findings of the juvenile c ourt. [Citations.] Evidence

5 Father’s prior willingness to accept a polygraph test when he was talking with social workers is at odds with his comment in his reply brief that “[f]or [Father], the test is offensive and reprehensible.”7 sufficient to support the court’s finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case.” ( In re N.S. (2002) 97 Cal.App.4th 167, 172.) We consider the evidence in a manner favorable to the prevailing party, re solve all conflicts in favor of the juvenile court’s order, and uphold the trial court’s or der unless no rational fact finder could have reached the same conclusion. ( In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401; In re
Athena P. (2002) 103 Cal.App.4th 617, 629.) Applying these standards, we conclude substantial evidence supports the juvenile court’s finding. In the previ ous appeal in this dependency, In re K.S. , we reviewed the
evidence that Father molested Minor’s sister and that Mother did not assist her daughter, and concluded it provided substantial evidence to support the juvenile court’s assumption of jurisdiction over Minor. ( In re K.S. , supra , A131951, [at p. 18].) We recognize that since that time, Father has pa rticipated in group sex offende r therapy and that there have been no allegations that he sexually abused Minor. Howe ver, there was evidence that Father’s therapist believed he had not met any of the goals of therapy, including understanding the cycle of abuse, working with triggers, and developing empathy for the
victim. There was also evidence that even after extensive ther apy, Father lay in bed with Minor as she fell asleep, was present while she was changing her clothes, and was aware that those activities might cause concern in the depe ndency proceedings, and that Mother did not prevent him from doing so. From these facts, the juvenile court could reasonably
conclude continued thera py and supervision were ne cessary to protect Minor. Appellants also argue that Father’s refu sal to admit abusing K.S., standing alone, is insufficient to continue jurisdiction, and that it would be “Kafkaesque” to require him
to admit to sexual abuse he contends neve r happened in order to end juvenile court jurisdiction over his daughter. (See Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752–1753 [recognizing risk that innocent parent might feel compelled to admit to
sexual abuse in order to receive reunification services].) Our conc lusion, however, is based on the record as a whole, which provid es evidence that Fath er did indeed sexually8 abuse K.S. and that the progress he and Moth er have made is insufficient to protect
Minor in the absence of continue d juvenile court supervision. We are not persuaded otherw ise by appellants’ reliance on In re N.S ., supra , 97 Cal.App.4th 167, 169–170, in which the Court of Appeal concluded the evidence did not support the continuation of ju venile court jurisdiction. The jurisdiction there was originally based on the father’s inability to manage his stress and anger. ( Id . at pp. 172– 173.) In the ensuing six months, however, there was no evidence the father had acted impulsively or had a temper outburst, a nd the evidence showed he had complied completely with his case plan and made good progress in therapy, and his therapist could identify no factors that left the minor at risk in the father’s care. ( Id . at p. 173.) Here, as we have explained, Father’s therapist had ex pressed concern about his lack of progress in therapy; moreover, in the contex t of this case, the evidence th at Father got into bed with Minor at bedtime and was present as she cha nged clothes could reas onably raise concerns for Minor’s safety.
B. Polygraph Test Appellants contend the juvenile court e rred in requiring Father to submit to a polygraph test as part of his case plan. A juvenile court has broad discretion to determine what would best serve a child’s interest and fashion a dispositional order, wh ich may include therapy for a parent. ( In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006; In re Lamonica H. (1990) 220 Cal.App.3d 634, 649–650; In re Gabriel L. (2009) 172 Cal.App.4t h 644, 652; § 362, subd. (a).) Appellants have not shown an abuse of that discretion here. It is clear that Father’s therapist recommended, and the juven ile court ordered, a polygraph test in order to further the purposes of Father’s therapy; th at is, in order to assist him in being honest in therapy and in taking respon sibility for the actions that led in part to the dependency. The therapist had opined that if Father was actually a sex o ffender and did not receive the treatment he needed, he would offend agai n. The juvenile court could reasonably conclude the polygraph test would assist Father in bene fitting from that treatment and thereby reduce the risk of harm to Minor.9 We note that in a different context, the court in Brown v. Superior Court (2002) 101 Cal.App.4th 313, 320–321, considered the propriety of requiring, as a condition of probation, that a probationer submit to polygr aph testing as part of his therapy. In response to the probationer’s challenge, the court concluded that “periodic polygraph examinations in furtherance of [the proba tioner’s] stalking therapy program is a valid condition of probation because it is reasonabl y related to the crim e of which [he] was convicted and to possibl e future criminality.” 6 ( Id . at p. 321, italics omitted.) Similarly here, we see no abuse of the lower court’s disc retion in ordering a polygraph test as part of Father’s sex offender therapy. Appellants argue, however, that under Evid ence Code section 351.1, subd. (a), the results of a polygraph examination are inadmissi ble in court, that future recommendations of the therapist and social wo rker will be based on those inadmissible results, and that therefore they will impermissibly influenc e the court in maki ng future decisions regarding Father’s parental rights. 7 This argument fails. First, Evidence Code section 351.1 provides that the results of a polygraph examination are not admissible “in

any criminal proceeding . . . or in any trial or hearing of a juvenile for a criminal offense, . . . unless all parties stipulate to the admission of such results.” (Italics added.) This

6 The court concluded, however, that th e condition was overbroad because it did not limit the questions to those relating to the successful comple tion of the stalking therapy program and the crime of whic h the defendant was convicted. ( Brown v. Superior Court , supra , 101 Cal.App.4th at p. 321.) Here, the juvenile court ordered services “as modified in the updated case plan.” That case plan provides, “Per the recommendation of [Father’s] sex offender therap ist, [Father] will participate in weekly individual therapy and submit to a polygraph test.” It appears to us sufficiently clear that the polygraph test may relate only to those matters pertinent to Father’s sex offender therapy.

7 Appellants do not contend Father’s Fift h Amendment rights are implicated by the requirement of a polygraph test, and we see no ca use for such concern. It does not appear that Father has been prosecuted for sexually abusing K.S. In any case, it is well established that a person subject to prosecution in the criminal courts is entitled to use immunity for statements made during court- ordered therapy in a dependency case. ( In re Lamonica H. , supra , 220 Cal.App.3d at p. 649; In re Jessica B. (1989) 207 Cal.App.3d 504, 521.)10 statute does not prohibit use of polygraph tests in dependency proceedings. (See In re
Kathleen W. (1987) 190 Cal.App.3d 68, 72.) Rathe r, subject to a foundational hearing, the results of a polygraph test may be admissibl e if the results are relevant to the primary issue before the court. ( Id . at p. 73; In re Jordan R. (2012) 205 Cal.App.4th 111, 122.) In any case, based on this record, it would be speculation to conclude the trial court will make orders based on the results of a polygraph test, whether or not admissible. In fact, the juvenile court indicated that if the results of a polygraph te st were in a social worker’s report, the court would disregard that informa tion. Accordingly, we reject appellants’ argument. III. DISPOSITION The order appealed from is affirmed.11 _ ____________ ____________ Rivera, J.

We concur:

_____________ ____________ Reardon, Acting P.J.

_____________ ____________ Humes, J.