Opinion
G057693
12-06-2019
In re D.F., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.F., Defendant and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18DP0772) OPINION Appeal from a judgment of the Superior Court of Orange County, Jeremy Dolnick, Judge. Affirmed. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
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Welfare and Institutions Code section 300, subdivision (c), gives the court jurisdiction over any child who "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 or guardian . . . ." (Italics added.)
All further statutory references are to this code unless otherwise indicated.
A.F., the mother of D.F., appeals from the juvenile court's order taking jurisdiction over her son, arguing the order must be reversed because there is insufficient evidence to support a finding that D.F. is presently "suffering from severe anxiety, depression, withdrawal, or untoward aggressive behavior." We reject the argument.
Under section 300, subdivision (c), a child's "severe anxiety, depression, withdrawal, or untoward aggressive behavior" is what evidences severe emotional damage, and jurisdiction is proper if the court finds either that the child is presently suffering severe emotional damage, or that the child is at substantial risk of it.
In this case, the evidence was sufficient to support the finding that D.F. was at substantial risk of suffering severe emotional distress as a result of his mother's conduct. Moreover, even if the statute were construed in the manner the mother suggests, we would conclude there is sufficient evidence to support a finding that D.F. has experienced both severe anxiety and depression. We consequently affirm the jurisdictional order.
FACTS
D.F. is the only child of A.F. and her ex-husband, B.F., who divorced in 2015. Since the divorce, the parents had been sharing 50-50 custody of D.F., exchanging custody each week, and D.F. had been undergoing weekly court-ordered therapy.
In June 2018, the Orange County Social Services Agency (SSA) received a referral after D.F. reported that his stepmother engaged in child abuse by repeatedly slapping the bare skin above his knees where he had recent cuts, while telling him to "toughen up." D.F. also claimed his stepmother and father had called him names and said disparaging things about his mother. He reported he felt "neglected, hated and angry" when at his father's house, and stated he did not feel safe there.
A second child abuse report was made that same day, regarding the same incident. The second report noted a history of restraining orders against the father to protect D.F. A third report was made on July 2, 2018. In the third report, it was noted that D.F.'s father had provided some context for the alleged incident, explaining that D.F. had repeatedly put his knee in his stepmother's face while she was reclining in a chaise lounge, although she warned him not to do so. Finally, the stepmother swatted D.F.'s knee away from her face. The third report also stated that the mother was planning to go to court to seek an ex parte order awarding her full custody of D.F.
A social worker interviewed D.F., his mother, father, and stepmother about the alleged child abuse incident. The father and stepmother explained that D.F. had fallen and scraped his knees while playing in the backyard and that the stepmother had bandaged his knees. Three days later, D.F.'s father and stepmother were sitting on patio furniture in the backyard and D.F. was lying across their laps. He put his scabby knee near his stepmother's mouth and she asked him to stop. He continued, apparently thinking it was funny, and she pushed his knee away with a flat palm. She did this several times; D.F. never told her to stop or appeared to be in pain.
D.F. repeated his initial description of the abuse when interviewed alone at his mother's house, and did so again when he was interviewed alone at his father's house—using "almost identical recall." But after being told stepmother's description of the incident, he "gave some credence to the stepmother's version of events." However, when the social worker brought the father and stepmother back into the room, D.F. reverted to what the social worker characterized as his "rehearsed version" of the incident "and completely discounted any other perspective."
The mother told the social worker she had learned of the incident when she picked D.F. up from his father's house, and he told her he never wanted to go back because his stepmother had hit him. The mother called her attorney, who advised her to take D.F. to the doctor. While at the doctor's office, the mother was asked about any other abuse. She responded, in front of D.F., that she had been raped and abused by D.F.'s father. She claimed the doctor had forced her to make that disclosure, an assertion contradicted by the nurse practitioner who was there.
D.F. also complained to the social worker about other aspects of his treatment at his father's house: they did not buy him fruits and vegetables; they refused to buy him shoes when he asked; they drank alcohol "all the time" when he was in their care; and they sometimes took away his iPad as a disciplinary measure. Both D.F. and his mother expressed disappointment when the social worker told them that nothing D.F. described rose to the level of child abuse or neglect, and thus provided no basis for SSA to interfere with any custody exchange.
The social worker also spoke with Jessica St. Clair, the court-appointed therapist who had been treating D.F. since 2015. St. Clair stated D.F. had been diagnosed with an "anxiety disorder" related to complaints about his father and his desire to be with his mother full time. She also stated she had ongoing concerns that the mother and D.F. were inappropriately affectionate with each other and appeared to be "enmeshed"; she believed the mother was coaching D.F. and telling him inappropriate things about her marriage to his father that were alienating D.F. from his father. St. Clair described D.F. as acting "helpless, weak . . . [and] afraid" with his mother and "confrontational and manipulative" with his father—a dynamic the social worker had witnessed. St. Clair also reported there had been two Family Code section 730 evaluations of D.F.'s custody situation, and that "both had grave concerns regarding the mother's enmeshment and influence over the child."
In July 2018, SSA filed the jurisdictional petition and obtained a protective custody warrant authorizing D.F.'s removal from his mother's shared custody, and placement in his father's full time custody. The petition alleged D.F. was subject to juvenile court jurisdiction pursuant to section 300, subdivisions (b)(1) (failure to protect due to parent's mental illness, developmental disability or substance abuse) and (c) (child is suffering, or at a substantial risk of suffering, serious emotional damage as a result of parental conduct). SSA later dismissed the allegation of jurisdiction under subdivision (b)(1) and proceeded to trial solely on the theory that jurisdiction was proper under subdivision (c).
The petition alleged in count one that D.F. had been diagnosed with attention deficit hyperactivity disorder and was on the threshold for autism spectrum disorder; that his parents were engaged in an ongoing custody dispute in which the family court's custody evaluator had opined that D.F. was enmeshed with his mother and that she was alienating him from his father. The petition further alleged that the mother shared paranoid thoughts with D.F. and could not comprehend the effect of this inappropriate behavior.
Count two of the petition alleged that D.F. had been participating in therapy for over three years and his therapist had concerns about his enmeshment with the mother and the undifferentiated boundaries between the two of them, as well as the mother's influence over D.F. and his alienation from his father. The therapist opined that the mother was coaching D.F. and emotionally abusing him, and she diagnosed D.F. with an anxiety disorder.
The petition alleged in count three that other service providers observed inappropriate boundaries between the mother and D.F. and observed her engaging in manipulative behavior and making false statements—including unsubstantiated claims of domestic abuse against D.F.'s father in D.F.'s presence.
The petition alleged in count four that the family court evaluator believed the mother may have mental health issues and was in need of evaluation and potential treatment.
Allegations that the mother may suffer from factitious disorder imposed on another (formerly known as Munchausen syndrome by proxy) and had displayed symptoms of undiagnosed/untreated mental health issues were stricken from the petition.
The petition alleged in court five that D.F. had made what appeared to be rehearsed allegations of child abuse against his stepmother that were later determined to be unfounded.
At the initial hearing on July 25, 2018, the court found a prima facie case had been made under section 319, appointed counsel for all parties, and ordered D.F. temporarily removed from his mother and placed in his father's custody. On July 27, 2018, after a contested two-day detention hearing, the court confirmed its initial detention orders, ordered 12 hours of monitored visitation per week for the mother, and set a jurisdictional hearing for August 2018.
In August 2018, SSA reported that D.F. remained in his father's custody, but continued to express a preference for living with his mother, who he described as his "best friend[]." D.F. "appears to be suffering from emotional distress." However, D.F. was observed differently during visits with each of his parents—appearing "feeble [and] tired" in his mother's presence, while in his father's presence he was "full of energy, running in and out of the home, playing with his Nerf guns, challenging his father."
The jurisdictional hearing was continued several times and, in addendum reports, SSA reported that D.F. remained placed with his father, and he was continuing to adjust and improve, doing better in school and making friends. D.F. continued to attend therapy with St. Clair, who reported he was showing marked improvement. He had gained weight and was looking like he had "grown up and matured," and was no longer using bedtime or eating as a form of manipulation. D.F. had begun to see himself as a part of his father's family, and was consequently more willing to advocate for himself and be part of the decision-making process. However, St. Clair later reported that D.F. continued to have some issues with food, including hiding his food or lying about eating it, and she characterized this as "a serious issue."
The jurisdictional hearing commenced on November 19, 2018, and extended over several dates in December 2018 and January, February, March and April of 2019. The court admitted into evidence all of SSA's reports, as well as the Family Code section 730 evaluation reports generated in the divorce case. Over the course of the hearing, the court heard testimony from several witnesses, including the social worker, D.F.'s mother, St. Clair, and D.F. himself. D.F.'s father and stepmother were present at each day of the trial, but were not called as witnesses.
St. Clair testified that she had been seeing D.F. once per week since 2015, when she received an order from the family court to become his therapist. The goal of treatment was to create a balanced opinion of his relationship with his parents, without favoring one or the other, to improve his social skills, to help him with his approach to food as he was significantly underweight, and to help him overcome past trauma. She diagnosed D.F. in 2015 with an "anxiety disorder, moderate adjustment disorder with anxiety," which she described as a "foundation in excessive worry, based on . . . his past experience," "and a lack of sense of personal power and control." A person suffering from anxiety disorder is "not sure how they are going to manage in any situation."
St. Clair described D.F. as "an anxious boy who felt very much out of place, at school in particular, who blamed his dad for financial injustice for leaving his mother, and took it upon himself to stand up for his mother and protect her, who wanted badly to go to school in his mother's neighborhood and never see his dad, and who complained and wrote complaints about dad and talked about killing him, about dad killing their dog. It was really sad."
St. Clair explained that D.F. expressed significant worries about his parents, including a concern that his father drank too much and would not be able to drive him to the hospital if he became ill, that his father had a gun and might use it, that his father would punish him heavily if he did not brush his teeth, and that certain foods would make him sick. D.F. also worried about his mother and who would take care of her when he was not there.
St. Clair believed the mother had exacerbated D.F.'s anxiety by communicating her own fears to him and making him feel less capable, by sharing inappropriate information with him about the divorce and his father, and by coaching him to question his father's love and concern for him. In 2017, after the mother had coached D.F. to believe his father had unreasonably delayed medical treatment for him, D.F. was so angry that St. Clair feared his relationship with his father would be "forever scarred." At around that same time, D.F. began bringing lists of concerns he wanted to talk about with St. Clair, all relating to his father. D.F. told St. Clair that his mother was present when he wrote the lists. He said that she "helped him remember," but he wrote them.
D.F. also reported to St. Clair that his father had abandoned his mother at the hospital when she was sick in order to divorce her and that he had murdered his dog, both of which caused St. Clair to have concerns that the mother was coaching him.
St. Clair was very concerned about the lists because they reflected a type of absolutist thinking—seeing "absolutely no good in his father, whatsoever, and ador[ing] his mother"—as indicative of behavior he should have grown out of by eight years old. By this time D.F. was nearly 11. She "thought that either [D.F.] was regressing to a much younger child, or that he had made a choice to only be with his mother, and he was going to eliminate his father from his life." St. Clair was concerned that his "anxiety was turning into phobias."
St. Clair was also concerned about "clinical enmeshment" between the mother and D.F., which she characterized as "a lack of boundaries between, usually a child and a parent." This was manifested in part by overt displays of affection between D.F. and his mother, which St. Clair believed were "inappropriate for a boy of his age," who "should be starting to be an individual from both parents." When St. Clair discussed this concern with the mother, she dismissed it, saying she disagreed and that she and D.F. "were very close." When St. Clair mentioned it to D.F., he responded that "[h]e loved his mother more than anyone in the world." The enmeshment was also manifested by the fact D.F. took "too much responsibility in his mind to care for his mother, and to reject his father for bad behavior and [his belief] that the two of them will be a team." St. Clair's concerns about enmeshment increased between 2016 and 2018, when D.F. told St. Clair that if the then-pending family court custody evaluation did not recommend that he live with his mother, he would either run away, or "try to get his dad to hit him so that child protective services will take him away from his dad and give him to his mom."
St. Clair believed D.F's anxiety began improving after SSA intervened and placed him in his father's full time custody. She testified D.F. stopped expressing so many worries about his parents. D.F. reported to St. Clair that he no longer worried about bugs, being homeless, or kids bullying him, and that he liked school and had made friends. When she testified at trial, St. Clair characterized D.F.'s current anxiety as "situational" to his concerns about his father and his desire to be with his mother full time. She explained that meant that "[a]t this time [D.F.] does not express worry about school and he is not afraid to walk to school." Also, "[h]e is proud of his performance, and he doesn't have problems with his teachers," and "he is not worried about events that happened in his father's home." All of that demonstrates "his anxiety is not manifested all the time."
St. Clair stated that D.F. understood that "the wheels were set in motion by his false reporting in the summer of 2018 of him being abused by his stepmother, and as a result of that, his life changed to where he's living with his father and visiting his mother." As a consequence, "he keeps those two parents very separate right now" and does not speak about his mother very much in therapy. "It's either father or very little about mother. Before it was father's all bad and mother's all good." She stated that D.F. remains "completely polarized, according to the person he spends time with, and that's dad right now. . . . So there's a lot of work to be done."
Finally, St. Clair explained that in August 2018 (about a month after SSA's intervention) she had given D.F. a test called Million Pre-Adolescent Clinical Inventory (M-PACI test), and "[h]e scored as extremely inhibited, socially awkward, somewhat depressed, very shy, attention deficit problems, and a very uneven bonding between parents."
The mother also testified about D.F.'s anxiety, which she estimated had begun in about 2013. She explained that when D.F. experienced anxiety, he "would hyperventilate; he would cry excessively; he would take his hands and pull on his hair, sometimes pulling his hair out. Sometimes he cried so hard that he would vomit." She stated that D.F. still had those extreme anxiety reactions on occasion—most recently due to what she believed was the undue pressure D.F.'s father was placing on him to get good grades—but she agreed that "[o]ver the last year there's been significant improvement." She denied having any role in creating D.F.'s anxiety, denied telling him negative things about his father, denied ever coaching him, and rejected St. Clair's concerns about enmeshment.
D.F. testified that he had less anxiety since he began living full time with his dad, and that he appreciates that he has been able to increase his weight and get better grades, but he would prefer to live with both parents. He misses his mom.
At the conclusion of the trial, after hearing argument from all parties, the court found that jurisdiction was appropriate under section 300, subdivision (c). Specifically, the court found "that while the minor is not currently suffering severe emotional damage, . . . the evidence presented by the county demonstrates that the minor is at risk of suffering severe emotional damage from the mother."
The court noted that it found St. Clair's testimony particularly persuasive, noting she was "in the best position to observe [D.F.] over a long period of time . . . . She diagnosed [D.F.] as having an anxiety disorder, and without going into all the details, I was persuaded when she discussed the differences of the two [D.F.s] that were developing." Notably, St. Clair "discussed the changes in [D.F.] since the change of custody at the time of detention."
The court discussed the mother's role in putting D.F. at risk of developing severe emotional damage, noting that "in some instances [she] actively caused anxiety in [D.F.], and other times played a role in affirming his fears, which further exacerbated those fears against father, leading to further alienation." The court also highlighted "the particulars as [D.F.] knowing things he shouldn't have known, and the only logical basis being that the mother was involving him in parental custodial issues." The court found that the mother "consistently and regularly allowed and encouraged [D.F.] to have these serious anxieties of the father. She allowed them to grow out of a need to control and did so purposely." The court found that the mother "claimed that she supports the relationship between [D.F.] and his father, but her actions and sometimes inactions show to the contrary." The court concluded that the mother's lack of insight into her behavior, plus the fact that she repeatedly perceives situations in a manner that is "not consistent with other observers or participants," means "that [D.F.] continues to be at substantial risk of emotional damage."
DISCUSSION
On appeal, the mother concedes the evidence was sufficient to support the factual allegations of the petition found true by the court. However, she argues the evidence was insufficient to support the court's finding that D.F. was at risk of suffering severe emotional damage because there was no evidence he was actually exhibiting "severe anxiety, depression, withdrawal or untoward aggressive behavior."
We disagree for two reasons. First, the mother's argument rests on the premise that under section 300, subdivision (c), even a finding that a child "is at substantial risk of suffering severe emotional damage" requires evidence that the child is already exhibiting "severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others." We do not interpret the statute that way.
Section 300, subdivision (c), provides that the court has jurisdiction over any child who "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 or guardian . . . ." In our view, the phrase "evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others" refers to the proof required to establish that a child is currently suffering severe emotional damages, not the proof required to establish a future risk of suffering such damage. To conclude otherwise would be to suggest that severe anxiety, depression, withdrawal or untoward aggression were not themselves serious emotional issues in a child.
In re Brison C. (2000) 81 Cal.App.4th 1373 (Brison C.), relied upon by the mother in her brief, supports our interpretation. In that case, the court directly equated the existence of severe emotional distress with evidence of a child's severe anxiety, depression, withdrawal or untoward aggressive behavior, while treating the substantial risk of severe emotional damage as a different issue: "the county bore the burden of establishing the following three elements: (1) serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior or a substantial risk of severe emotional harm if jurisdiction is not assumed; (2) offending parental conduct; and (3) causation." (Id. at p. 1379.)
In any event, the record before us contains sufficient evidence that D.F. was experiencing severe anxiety as well as depression when SSA intervened. "A dependency court's jurisdictional findings are reviewed under the substantial evidence test. [Citation.] Under this test, we resolve all conflicts in the evidence, and indulge all reasonable inferences that may be derived from the evidence, in favor of the court's findings." (In re Mia Z. (2016) 246 Cal.App.4th 883, 891.) "Substantial evidence may include inferences, so long as any such inferences are based on logic and reason and rest on the evidence." (In re Madison S. (2017) 15 Cal.App.5th 308, 318.)
In this case, D.F. was diagnosed as suffering from anxiety. Based on the mother's description of his symptoms, which included hyperventilating, excessive crying, and pulling out his hair, we believe these can fairly be characterized as severe. Moreover, D.F.'s therapist, St. Clair, who had been treating him for five years, became concerned that his anxiety about certain issues would ripen into phobias, and that D.F.'s increasing aversion to his father might mean their relationship would be "forever scarred." Ultimately, D.F.'s inability to manage his anxiety led him to falsifying a claim of child abuse against his stepmother. Those facts support the conclusion that by the time SSA intervened, D.F.'s anxiety was severe.
The mother asserts, without any supporting authority, that D.F.'s symptoms of "hyperventilating, crying excessively (sometimes to the point of vomiting) and pulling his hair, do not rise to the level of showing severe anxiety." In the absence of authority establishing diagnostic standards that place such symptoms outside the range of severe anxiety, we reject the assertion. We are obligated to draw inferences in favor of the judgment.
And if that were not enough, St. Clair testified that when she tested D.F. in August 2018—about a month after SSA intervened, he scored as "somewhat depressed." That evidence supports a finding that D.F. was suffering from depression as well.
The mother likens this case to Brison C., in which the appellate court found that evidence of a child's "deep dislike and fear of his father" was not sufficient to support a finding that he was suffering from, or at substantial risk of suffering from, severe emotional damage. (Brison C., supra, 81 Cal.App.4th at p. 1380.) The court acknowledged that Brison had threatened suicide if forced to live with his father, but concluded he had no plans to follow through on the threat, which was merely an effort "to emphatically express his wishes regarding custody." (Ibid.) The court noted that otherwise, Brison was a "remarkably resilient child," who "was performing at or above grade level at school" and "did not exhibit behavioral abnormalities . . . ." (Ibid.)
The mother points out that, like the child in Brison C., D.F. is now doing well in school, has no behavioral problems and has adjusted "easily and well to living with [his f]ather." We reject her effort to bootstrap the remarkable progress D.F. has made since SSA's intervention—including D.F.'s improved grades and reduced anxiety—into a justification for concluding that intervention was not needed. As St. Clair testified, D.F. was still in need of "a lot of work" to address his ongoing emotional issues.
Brison C. is distinguishable from this case in that there was no evidence the child in Brison C. was suffering from any emotional disorders. In this case, by contrast, D.F. has long been plagued by significant anxiety and related issues, and had already been under the care of a therapist for three years before SSA became involved.
The mother also attempts to distinguish this case from In re A.J. (2011) 197 Cal.App.4th 1095 (In re A.J.), in which this court affirmed a finding of dependency jurisdiction in a case where the child was also the subject of a custody dispute. The mother suggests that In re A.J. was different because the child had "physical manifestations of severe anxiety or depression"—meaning nightmares—while D.F. has had no such physical manifestations. We must reject the distinction as it ignores the fact that D.F. manifested his anxiety in other ways, including crying until he vomited and pulling out his hair.
Based on the foregoing, we find no error in the dependency court's assertion of jurisdiction based on section 300, subdivision (c).
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: O'LEARY, P. J. MOORE, J.