Opinion
B325310
11-20-2023
In re Colten C., a Person Coming Under the Juvenile Court Law. v. MICHAEL C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 22CCJP03428A, Debra R. Archuleta, Judge. Affirmed.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.
EDMON, P. J.
Michael C. (father) appeals from jurisdictional and dispositional orders concerning his son, Colten C. Father contends that substantial evidence did not support the orders sustaining the petition and removing Colten from his care, and the juvenile court abused its discretion by requiring father to participate in anger management classes and by permitting father to visit Colten only in a monitored setting. We find no error, and thus we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Colten (born in April 2012) is the child of father and Angela R. (mother). Mother and father were never married and ended their relationship when Colten was an infant. When this proceeding began, mother and father had joint custody of Colten.
I. Detention.
In July 2022, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that father emotionally abused 10-year-old Colten. A children's social worker (CSW) interviewed mother, who said that the child abuse report was generated after father told Colten to stay with mother, but then changed his mind and told Colten he would pick him up in a few minutes. Colten began crying and said father hated him and he did not want to go to father's house. Father threatened to call the police, and mother ultimately did so.
Mother reported that Colten often had a lack of appetite after baseball games because father put excessive pressure on him, telling him "[d]on't fuck up out there" and "don't fuck up in the dugout," causing Colten to cry. Further, Colten recently had seen father having sex with his girlfriend, had seen father kissing other women, and had been exposed to pornography on father's phone. Colten told mother he could not talk to father about these things because father would yell at him. Mother sometimes saw marks and bruises on Colten's body, but Colten would tell her he did not remember how he got them.
Colten told the CSW that he felt nervous and scared around father. Father called him a" 'motherfucker,'" and would tell him" 'don't be a little bitch'" and" 'shut the fuck up.'" Colten said father yelled every day at everyone in the household, including Colten, father's girlfriend, and Colten's five-year-old half-brother. Father used profanity frequently, directing" 'fuck'" and" 'bitch'" at his girlfriend and the children. When father's swearing and yelling made Colten cry, father would tell him," 'Don't be a little bitch'" or" 'Don't be a little baby because you'll be a bitch when you're older.'" Father called mother bad names every day and yelled at Colten in public, which made Colten uncomfortable. Colten worried that father would get into a physical fight with someone when father and Colten were out in public because father had told him he used to fight a lot when he was younger.
Colten reported an incident about a year earlier when he accidentally hit father's foot with a door; father called him" 'a little bitch'" and hit him with an open hand on his leg so hard that it left a dark bruise. Colten said father hit him when he was not listening or was misbehaving, about two times a week, leaving dark bruises. Colten had seen father have sex with his girlfriend Sarah, and he said father cheated on Sarah a lot, but Colten did not talk to father about it because he thought he would get in trouble. Colten felt safe with mother and his stepfather.
Father denied cursing excessively, calling Colten derogatory names, putting excessive pressure on Colten, or using physical discipline. Father said Colten's pediatrician had referred Colten to a therapist about two months earlier, but father did not believe Colten was anxious when he was at father's house. According to father, Colten was always happy at father's house. Father denied exposing Colten to pornography, but he said Colten had downloaded a program that gave him access to nude pictures on father's phone. Father believed mother was making false accusations against him.
Father's girlfriend, Sarah, denied that father cursed at or physically disciplined the children. Colten's five-year-old half brother denied being physically disciplined by father, but he said father hit Colten with an open hand. He said father and Sarah" 'talk bad words'" and there was yelling and pushing in the home.
Colten's stepfather said that father intimidated Colten and put him down. As a result, Colten was scared to talk to father. Colten reported a lot of arguing and cussing between father and Sarah.
On August 11, 2022, Colten told a police officer investigating child abuse that father had hit him on the knee, buttocks, and thigh with an open hand, which sometimes left a mark. Father yelled and swore at him frequently, which made Colten feel bad about himself. Mother told the officer that she left father when Colten was about a year old because he was verbally abusive. Mother also raised concerns about sexual abuse, stating that father had gotten Colten a phone that had been linked to father's phone and photos. When Colten and mother were looking through Colten's photos, they saw photos of father naked, of naked women, and of father having sex with some of those women. Colten confirmed seeing pictures of naked women on his phone, and also said he often heard father and his girlfriend having sex.
On August 30, 2022, the juvenile court ordered Colten removed from father. On September 1, 2022, DCFS filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b)(1), and (c), alleging that father physically abused Colten by striking his knee and thigh, causing bruising (counts a-1 and b-1); caused Colten to feel scared, anxious, and nervous, but failed to obtain necessary mental health services (count b-2); and emotionally abused Colten by calling him degrading names, yelling and cursing at him, and speaking negatively about mother in Colten's presence, causing Colten to feel scared and anxious and placing him at substantial risk of suffering serious emotional damage.
All further statutory references are to the Welfare and Institutions Code.
The court held a detention hearing on September 16, 2022, at which it detained Colten from father, ordered him placed with mother, and granted father twice-weekly monitored visits.
II. Jurisdiction and disposition.
A CSW reinterviewed Colten in early October 2022. During that interview, Colten denied fearing father or feeling nervous or anxious around him. He also denied that father called him bad words or names. Colten had begun seeing a therapist and liked attending sessions.
The CSW also reinterviewed mother in early October 2022. Mother said father had called Colten names like" 'little bitch,'" " 'mother fucker,'" and" 'pussy,'" and told him he looked" 'gay'" and did not look like a boy after he dyed his hair. Mother said Colten was afraid to communicate with father and felt that he was always blamed and in trouble when he was with father.
Father told the CSW that he had spanked Colten only twice in his life, and that Colten loved being at father's house. Father said he had not opposed mental health services for Colten, but merely wanted to know where Colten would be receiving services.
Father's girlfriend reported that she and father had broken up in June, and father had moved out of their shared home in August. She denied that father was physically or verbally abusive to Colten or her children. However, she had ended her relationship with father because he would "get frustrated and scream and 'tantrum' at her."
Colten's therapist saw Colten three times, initially for intake, and then for two sessions. She said Colten felt guilt over DCFS's involvement with the family. Colten was not worried that father would hurt him physically, but worried that father would continue to have emotional outbursts. The therapist said Colten exhibited a minor trauma response, and she expected to do short term therapy with him of about 12 to 20 sessions.
The CSW reported that father had not returned her calls to set up visitation. As of mid-October, father had had just one visit with Colten, which had been monitored by another CSW. DCFS recommended that the juvenile court sustain the petition and offer father reunification services.
At the November 2, 2022 jurisdiction and disposition hearing, attorneys for DCFS and for mother asked the juvenile court to sustain the petition as pled. Colten's attorney asked the court to sustain only the b-2 count. Father's counsel requested that the petition be dismissed in its entirety, urging that the alleged incidents of physical discipline were remote in time and did not rise to the level of physical abuse; Colten was receiving therapy; father had not caused Colten's mental health issues; and Colten had reported not feeling afraid of father. Further, while father might have raised his voice or used inappropriate language while speaking to Colten, that conduct did not constitute emotional abuse.
The juvenile court dismissed the a-1 and b-1 counts alleging physical abuse, but sustained the b-2 and c-1 counts alleging emotional abuse, finding that DCFS had established those allegations by a preponderance of the evidence. The court noted that although it had dismissed the physical abuse counts, "the emotional abuse that father is inflicting upon Colten is going to last a lot longer than a bruise."
As to disposition, minor's counsel requested that Colten remain placed with mother or that the court terminate jurisdiction. Mother's counsel requested that jurisdiction be terminated with an order giving the parents joint legal custody and giving mother sole physical custody. Father's counsel submitted on the case plan proposed by DCFS but objected to termination of jurisdiction, noting that the parents had difficulties co-parenting.
The court ordered Colten removed from father and placed with mother, finding Colten's health and safety would be at substantial danger in father's care. The court declined to terminate jurisdiction, however, noting that it was concerned about the dynamic between mother and father. The court further ordered father to complete an anger management class, a parenting class, a co-parenting class with mother, and individual counseling; ordered individual counseling for Colten; and ordered mother to engage in co-parenting classes with father. The court granted father monitored visits with Colten.
Father's counsel objected to the anger management class, asking that father be allowed to address anger management through his individual counseling. The court ordered the anger management class over father's objection.
Father timely appealed.
DISCUSSION
Father contends: (1) the jurisdictional findings were not supported by substantial evidence; (2) the removal order was not supported by substantial evidence; and (3) the juvenile court abused its discretion by ordering father to participate in anger management classes and by permitting father to visit Colten only in a monitored setting. We find no error, as we discuss.
I. Substantial evidence supported the juvenile court's jurisdictional findings.
Father contends that the juvenile court's jurisdictional findings were not supported by substantial evidence because father's conduct did not rise to the level of emotional abuse, any such abuse did not cause Colten harm, and any emotional harm was not severe. These claims lack merit.
Section 300 provides that a child is within the juvenile court's jurisdiction if, among other things, "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . [t]he failure or inability of the child's parent or guardian to adequately supervise or protect the child" (subd. (b)(1)), or "[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent" (subd. (c)).
We review the juvenile court's jurisdictional findings for substantial evidence." 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings . . ., we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations." '" (In re I.J. (2013) 56 Cal.4th 766, 773.)"' "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.]" '" (Ibid.)
We begin with the evidence supporting the juvenile court's finding that Colten either was suffering serious emotional damage or was at substantial risk of suffering serious emotional damage under section 300, subdivision (c). As discussed above, Colten reported that father regularly yelled at, cursed at, demeaned, intimidated, and hit him, including calling him" 'a little bitch'" and" 'a little baby.'" Father also verbally abused other members of his household and called mother derogatory names in Colten's presence. Father's conduct caused Colten to cry, to feel uncomfortable and afraid, to lose his appetite, and to feel bad about himself. Colten's therapist said Colten was demonstrating a trauma response, and she recommended therapy to help him to deal with the effects of that trauma.
Unquestionably, this evidence was sufficient to support the juvenile court's findings under section 300, subdivision (c).
Father challenges the juvenile court's finding on a number of grounds, but none has merit. First, father urges that his conduct, while "unpleasant," was not "emotionally abusive." We do not agree: Father demeaned, embarrassed, and insulted Colten, causing him to cry and to try to avoid visits with father. This is sufficient to constitute emotional abuse within the meaning of the statute.
Next, father contends that any emotional damage Colten experienced resulted from the parents' custody battle, not father's conduct, and thus was not a basis for dependency jurisdiction. Not so. Colten told the CSW, a police officer, and his therapist that he felt nervous and scared around father because of father's verbal abuse-not because of conflict between his parents. Indeed, we are not aware of any evidence in the record suggesting that Colten experienced emotional distress as a result of conflict between mother and father.
Finally, father contends that while Colten may have been "mildly anxious," he was not suffering from severe emotional damage because he did not evidence severe anxiety, depression, withdrawal, or aggressive behavior towards others. In so contending, father misunderstands section 300, subdivision (c), which requires either "serious emotional damage" or "substantial risk of serious emotional damage." Thus, for example, in In re D.B. (2020) 48 Cal.App.5th 613, 617 to 618, the Court of Appeal held that substantial evidence supported a section 300, subdivision (c) count where the father was verbally abusive, called the mother offensive names in front of the child, and told the child she was a loser and would never amount to anything, causing the child to feel sad and overwhelmed and to have nightmares. This evidence, the court said, supported the juvenile court's finding "of a risk of serious emotional damage to [the child]." (Id. at p. 621.) The court similarly concluded in In re D.P. (2015) 237 Cal.App.4th 911, where the parent repeatedly exposed the child to domestic violence. The court explained: "[T]hough it is true that there was no evidence that D.P. had actually suffered emotional harm, section 300, subdivision (c) nonetheless applies to a child who is at substantial risk of suffering serious emotional damage even when there is insufficient evidence of actual harm." (Id. at p. 919, italics added; see also In re Matthew S. (1996) 41 Cal.App.4th 1311, 1320 [juvenile court properly sustained § 300, subd. (c) count where mother "brings a foreboding sense of dread, danger and catastrophe to the lives of her children," even though the child had not yet suffered severe emotional harm].)
The present case is analogous to In re D.B. and In re D.P. Although Colten arguably was not suffering "serious emotional damage" within the meaning of the statute, he unquestionably was having a strongly negative emotional reaction to father's emotionally abusive conduct, and the court was well within its discretion in concluding that Colten was at substantial risk of future serious emotional damage. Accordingly, the juvenile court properly exercised jurisdiction pursuant to section 300, subdivision (c).
Having so concluded, we need not discuss the evidence supporting the juvenile court's exercise of jurisdiction under section 300, subdivision (b)(1). (See, e.g., In re Drake M. (2012) 211 Cal.App.4th 754, 762, disapproved on other grounds in In re D.P. (2023) 14 Cal.5th 266, 283 [" 'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the [trial] court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence' "].)
II. Substantial evidence supported the juvenile court's removal finding.
Section 361, subdivision (c)(1) provides that a child shall not be taken from his parent's physical custody unless "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody."
Whether the conditions in the home present a risk of harm to the child is a factual issue. We therefore apply the substantial evidence test, reviewing the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, resolving all conflicts and making all reasonable inferences from the evidence in favor of upholding the juvenile court's orders. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) In doing so, we take into account the clear and convincing evidence standard-that is, we consider whether the record as a whole contains substantial evidence from which a reasonable trier of fact could have found potential detriment by clear and convincing evidence. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005-1006.)
Father contends that the juvenile court improperly removed Colten from his custody because father was able to protect Colten from future harm, and reasonable alternatives to removal existed, such as wraparound services, unannounced home visits, and conjoint therapy. We do not agree. As noted above, there was substantial evidence that father regularly yelled at, cursed at, demeaned, intimidated, made homophobic comments to, and hit Colten, which caused him to cry, to feel uncomfortable and afraid, to lose his appetite, and to feel bad about himself. Further, father exhibited no insight into his behavior or Colten's response to it, instead denying that he put excessive pressure on Colten or that Colten was anxious or unhappy at father's house. Father's lack of insight provided support for the juvenile court's finding that Colten would be at future risk with father in an unsupervised setting. (See, e.g., In re Cole C. (2009) 174 Cal.App.4th 900, 918 [evidence supported the juvenile court's finding that no reasonable means to protect the child were available without removing him from the parent's custody where parent failed to acknowledge the inappropriate nature of his parenting techniques and disciplinary methods]; In re Yolanda L. (2017) 7 Cal.App.5th 987, 996 ["father's lack of insight into the danger posed . . . provided support for the potential of future risk"]; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."].) Accordingly, substantial evidence supported the juvenile court's removal order under section 361, subdivision (c).
III. The juvenile court did not abuse its discretion by requiring father to participate in an anger management program and by restricting father's visits to monitored visits.
If a child is adjudged a dependent child of the juvenile court, the court may make "any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a).) The juvenile court has "wide latitude" in making such orders for the well-being of the child and "is not limited to the content of the sustained petition when it considers what dispositional orders would be in the best interests of the children. [Citations.]" (In re Briana V. (2015) 236 Cal.App.4th 297, 311.) To the contrary, the court's "broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion, permits the court to formulate disposition orders to address parental deficiencies when necessary to protect and promote the child's welfare, even when that parental conduct did not give rise to the dependency proceedings. [Citation.]" (In re K.T. (2020) 49 Cal.App.5th 20, 25.)
Father contends that the juvenile court abused its discretion by ordering him to participate in an anger management program because although he "sometimes yelled and cursed," he did not have an anger management problem. Substantial evidence supported the juvenile court's contrary conclusion: Colten told the CSW that father yelled at everyone in the household on a daily basis and routinely called Colten derogatory names; Colten's half-brother said father hit Colten, yelled, and used "bad words" at home; mother reported that she ended her relationship with father because of his verbal abuse; and father's girlfriend, Sarah, said she had recently ended her relationship with father because he would "get frustrated and scream and 'tantrum' at her." On this record, the juvenile court manifestly did not abuse its discretion by concluding that father had difficulty managing his anger and by ordering father to participate in an anger management program.
Father also contends that the juvenile court abused its discretion by permitting him to visit with Colten only in a monitored setting because "[h]e had never been abusive of the minor," "he was more emotionally nurturing and caring than the mother," and Colten "was no longer fearful of the father or nervous or anxious around him." Father did not raise any of these objections in the juvenile court, and thus he has forfeited them on appeal. (See, e.g., In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds ["a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court"]; In re Dakota H. (2005) 132 Cal.App.4th 212, 222 [parent "may not assert theories on appeal which were not raised in the [juvenile] court"].) In any event, father's contentions are inconsistent with the sustained petition, which alleged that father emotionally abused Colten, and with the evidence summarized above. The monitored visitation order therefore was not an abuse of discretion.
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed.
We concur: EGERTON, J. ADAMS, J.