Opinion
G055003
11-17-2017
In re A.H. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. L.H., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Sue, Deputies County Counsel, for Plaintiff and Respondent. No appearance for minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16DP0849, 16DP0850, 16DP0851 OPINION Appeal from a judgment of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Sue, Deputies County Counsel, for Plaintiff and Respondent. No appearance for minors.
L.H. (father) challenges the sufficiency of the evidence to prove the juvenile court's jurisdictional findings. He also contends the court erred by not placing the children with him and reducing his visitation, and Orange County Social Services Agency (SSA) did not provide him with adequate housing assistance.
P.R. (mother) did not appeal, and father acknowledges minors will remain dependent children of the juvenile court regardless of the disposition of his appeal. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) We review the court's orders and findings because they could have other negative consequences for father. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) However, we find none of father's arguments persuasive and affirm the judgment.
FACTS
1. Background
Mother has five children: A.M., K.M., A.H., G.H., and M.H. Father is the alleged father of A.H., G.H., and M.H (minors). A.M. (sister) became an adult before the juvenile court assumed jurisdiction over minors, and father does not challenge the court's rulings with respect to K.M.
In August 2016, mother gave birth to M.H. Authorities placed a hospital hold on M.H. after his blood tests were positive for amphetamine, and mother admitted using methamphetamine during her pregnancy. At the time, minors K.M., A.H., and G.H., then 14, eight, and three years old, respectively, lived with mother and mother's extended family. Father did not live with the family. He lived in motels and his car. He also had an outstanding arrest warrant for drug-related charges.
2. Petition
Shortly after M.H.'s birth, SSA filed a juvenile dependency petition alleging minors came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b)(1) (child has suffered, or is at substantial risk of neglect and abuse), and (j) (risk due to neglect or abuse of sibling). (All further statutory references are to the Welfare & Institutions Code.)
The petition alleged M.H. and his siblings were at substantial risk for abuse or neglect based on mother's drug use during her pregnancy, and the fact father knew mother ingested methamphetamine during her pregnancy. The petition also alleged both mother and father had unresolved drug addictions and prior criminal convictions for drug-related offenses. Mother and father also had a history of domestic violence that resulted in the issuance of mutual restraining orders.
Father had no stable residence, and although he had been previously diagnosed with depression and prescribed medication for the condition, he had stopped taking his medication.
3. Detention Hearing
Father did not personally attend the detention hearing, but his attorney represented father wanted minors placed with him. Father told the social worker he planned to move in with his paternal aunt, or rent a motel room, if minors were placed with him. Mother wanted the children placed with the maternal grandmother.
The court found the petition stated a prima facie case for continued detention, ordered reunification services and authorized funds for substance abuse testing, and placed minors with sister and her husband. The court granted father unlimited, unsupervised visits while mother received monitored visitation for a maximum of 10 hours per week.
Within a week of the detention hearing, SSA filed a petition to modify father's visitation. The petition alleged father engaged in a verbal argument with some relatives that escalated into a physical fight. Minors were present and M.H. narrowly avoided being crushed by a chair. Moreover, when father dropped off minors at sister's home, he became angry, grabbed sister on the back of her neck, and laughed. As a result, the court changed father's visitation to monitored visits for six hours a week.
4. Summary of SSA Reports
Father and mother first came to SSA's attention in 2010. Father lived with mother, minors, and mother's extended family. SSA substantiated domestic violence allegations after father rammed his car into mother's car in an attempt to keep her from driving away with one of the minors. After mother was arrested for driving without a license and then found to be in possession of methamphetamine and methamphetamine paraphernalia, allegations of neglect were also substantiated. The family received services under the voluntary family maintenance plan.
In 2011, SSA investigated allegations of physical abuse by maternal grandmother, but the charges were unsubstantiated. In 2015, SSA substantiated allegations of general neglect by mother and maternal grandmother.
Shortly after M.H.'s birth in 2016, the social worker interviewed father. He admitted becoming depressed after he lost his finger in a work-related accident and took medication. The social worker asked about father's outstanding arrest warrant. Father told the social worker mother's sister planted drugs on him, and his lawyer had filed a petition to remove the outstanding warrant. Father assured the social worker he was drug free and subject to random drug testing by his employer, even though he was not employed at the time.
Father admitted he knew mother used methamphetamine during her pregnancy. However, they separated shortly after mother became aware of the pregnancy. Father said they had informally agreed he could visit minors on weekends and the occasional weekday. Father acknowledged the prior instances of domestic violence with mother, but he claimed to have completed a batterer's treatment program. When asked about the fight that occurred in minors' presence, father said no one had been injured and "it wasn't a big deal."
However, A.H. told the social worker the fight made him afraid of his father. A.H. also said his father had threatened to hit him if he cried. A.H. further reported father had hit him with a belt while A.H. was in the shower. A.H. did not want to see father anymore.
Sister reported visitation with father had been difficult. He repeatedly showed up unannounced, and he had threatened to take minors from her custody. Father also referred to her by mother's name, he once threatened to put a bullet in someone's head, and he grabbed sister's neck and laughed. Sister was also concerned because father called A.H. stupid and acted aggressively with him, and she knew father had spanked A.H. with a belt in the shower.
The social workers who monitored father's visits reported father usually provided food at the visits. He spent most of his time supervising A.H. and G.H. while he held the baby, M.H. The social workers also noted father's habit of scolding A.H. for minor flaws, and that A.H. sometimes seemed withdrawn. G.H. seemed happy to see father.
5. Amended Petition
In September, about a month after the minors' removal, SSA filed an amended petition after mother tested positive for amphetamine and methamphetamine, and the court removed K.M. from her custody.
The amended petition also alleged father had repeatedly said someone had implanted a chip in his head that caused him to hear voices. Father said the voices were threatening to harm minors unless father paid the voices. He also thought minors had chips implanted. When asked if he would be willing to take medication, father expressed "uncertainty." Father tried to maintain contact with mother, but she did not want to talk to him, and the social worker suggested mother file a police report if he continued to bother her.
6. Summary of SSA Reports After Amended Petition
During the next month, father missed appointments with the social worker, and he showed up late for visitation with minors. The social worker expressed concern because father did not seem to have age "appropriate child development knowledge." He acted like M.H. comprehended speech and acted maliciously. He complained about minors' caretaker, and he discussed the allegations of the petitions with minors.
Father did resolve his outstanding arrest warrant. He pled guilty to possession of a controlled substance and drug paraphernalia, and he was sentenced to formal probation, a drug treatment program, and 90 days in jail. Notwithstanding his plea, father denied the allegations of the petition, including those related to his drug abuse, and he refused to meet with the social worker to discuss them. Consequently, the social worker told father reunification services could be denied to him under section 361.5, subd. (b)(13).
Section 361.5, subdivision (b)(13) permits the court to deny reunification services when "the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment . . . , or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions . . . ."
Father started a parenting class, and he attended a couple of Alcoholics Anonymous (AA) meetings. However, he also started reporting that mother put something in his Monster energy drink, and that was how a chip became implanted in his ear. Father believed the chip allowed other people to monitor his thoughts and implant dreams. In fact, he accused the supervisor of his last job of monitoring him through the chip, and father said the same man blackmailed him because father knew about a government scam. Father told the social worker he planned to file police reports, and go to the Federal Bureau of Investigation (FBI), or Congress, to get someone to remove the chip. Father also heard voices telling him to "kill his children," and the voices encouraged him to commit suicide.
Father complained people were going in and out of mother's second-story window because she was a prostitute, and he accused the minors' uncle of giving K.M. drugs. He also insisted, wrongly, that someone working on the case for SSA was related to the caretaker's husband.
In November, the social worker reported father repeatedly accused her of not helping him, and he could not understand why the court would not place minors with him. When the social worker asked father about his progress with AA and drug testing, father replied, "You don't give a Fuck about my kids, you guys don't care." Father accused sister and her husband of being involved with the FBI and Internal Revenue Service. He complained that his current attorney had not given him any of the court reports, and he threatened to have everyone investigated by a judge in "Emergency Court." Father believed everyone was working against him for financial gain.
In his December interview with the social worker, father continued to discuss the chip in his head. He reported the chip made him feel as though he was high on marijuana and crave alcohol. He told the social worker his current employer was corrupt and unfair, and he talked at length about a conspiracy between electric companies to disobey government regulations and pay off inspectors.
Father lived in his car, but he had reportedly started saving money for an apartment. Unfortunately, someone had stolen money from his wallet while he was in the shower. Father claimed to have successfully completed a parenting class and passed his drug tests, but his drug tests had been dirty, or diluted, and father had not completed the parenting class. In fact, father told the social worker he did not know why he had to participate in domestic violence and drug treatment programs, and he did not see the benefit in receiving mental health services.
SSA found pornographic material on father's cell phone after he loaned the phone to G.H. during one of his visits. Father blamed sister for the pornography and accused her of taking the memory chip out of his phone. He also accused sister of controlling the chip in his head and monitoring him, and of placing another chip in her father-in-law's head.
In January 2017, father told a therapist he felt like he had been controlled by the chip in his ear for about 13 years. Father intended to search the Internet for an article about the chip in his head. He believed an unsuccessful search would prove someone had been paid 10 million dollars to get rid of any articles. The therapist encouraged father to seek mental health treatment, but father was not "receptive" to the idea.
Father told the social worker he had been unable to obtain work because his previous employers were blackmailing him. Father believed the chip could transfer sicknesses, like cancer and the flu, to minors.
Father admitted drinking excess amounts of water prior to his drug tests to dilute the results, and he blamed a recent positive test for alcohol on a family birthday party. He refused to attend AA because of the unwholesome atmosphere.
The social worker assisted father in his search for housing. There is only one program for which SSA takes applications, The Family Unification Program, but this program was not available to residents of Anaheim, Santa Ana, Garden Grove, or outside Orange County. Although Section 8 housing is available in some cities, Santa Ana and Garden Grove were not accepting new applications at the time. The social worker explained this information to father, and she gave father lists of additional housing services. Father said he would go to court and have the judge order the social worker to find a place for him and minors to live.
In February, the social worker explained she could file an application for one housing program on his behalf, but that this program was not available to him. Father accused the social worker of not wanting to help him, but the social worker gave father housing assistance information, including temporary shelter and transitional housing.
On one occasion, father called and demanded an immediate meeting with the social worker because he had found a security guard at a local health care agency named Jesus who could confirm he had a chip in his ear. During the meeting, father asked for housing assistance, and the social worker again explained she could not file applications for all available housing assistance. Father denied needing any other services, and he told the social worker she was using minors as a bargaining chip. He adamantly denied substance abuse, and he refused to complete a substance abuse program.
At another meeting, he gave the social worker the number of a Santa Ana police report that concerned the chip in his ear. According to father, the sheriffs told him the chip was for federal communication and use. Father said the chip was damaging his brain and would kill him, and he had become convinced minors had chips implanted, too. According to father, he had been able to remove a previous chip by going under a waterfall in Mexico. He thought the new chip had been implanted around March 2015. Father also told the social worker Netflix, Disney, and Universal Studios had stolen movie ideas from him by using the chip. He planned to file law suits.
Father filed a police report with the Orange County Sheriff's Department in which he alleged a chip had been implanted in his head in 2004 by his then girlfriend to monitor his thoughts and actions. Father said the chip reads his mind and transfers information to a monitory agency, and he believed the chip caused him to lose his money, children, family, and home.
In March, father's attorney requested the court appoint a guardian ad litem for father. The attorney said father's mental health prevented him from understanding the nature of the proceedings, and she had been unable to assist him with the case. When the court questioned father, he denied the need for a psychologist or psychiatrist. He said he had been injured and was seeing a chiropractor, and he was basically doing everything he could do. Father told the court about the chip in his head, the police report, and what the sheriff's deputy had said. After father's testimony, the court appointed a guardian ad litem.
In April, there were reports father followed mother and minors, took pictures and videos of them from a distance, and posted these videos on Facebook. These incidents scared minors. Father also left the social worker a voicemail in which he threatened to start an investigation into SSA.
Following one court appearance, father again pressed the social worker for housing assistance and said he wanted minors back. When the social worker told him to focus on getting the chip out of his ear, father accused the social worker of making up excuses for not returning minors, and he alleged sister was profiting financially from the current arrangement.
During another meeting with the social worker, father accused SSA of kidnapping minors. He adamantly refused to admit a drug problem, to see a psychologist or psychiatrist, or to believe the voices in his head posed a risk to minors. He complained about sister and a recent restraining order she had obtained against him. He also complained sister and the social workers were financially benefitting by keeping minors away from him. 7. Jurisdictional & Dispositional Hearing
The social worker testified at the jurisdictional hearing, and her testimony was consistent with the substance of SSA's reports.
Sister testified she lived with mother and father until the end of 2015. At the time, she saw obvious signs father was using drugs. She had also witnessed numerous acts of domestic violence between mother and father. One instance in particular happened during the first months of mother's pregnancy with M.H.
Sister had also seen father hit A.H. In fact, A.H. reported that father called him bad names and hit him in the back of the head during their visits. Sister testified father would hit A.H. whenever something happened to his younger sibling, G.H., and father hit A.H. with a belt, shoe, or hand if A.H. asked for too much help with homework. Sister noticed that father's beatings sometimes left marks on A.H., and A.H. said he was afraid of father because of father's actions and words.
Sister recounted the time father grabbed her neck and tried to push her into a car. She remembered father talking about chips in his ears. When she lived with him, father would tell sister to lower her voice in the house because "they" could hear her. Father had also picked at paint bumps on the wall because he thought there were cameras under the bumps. Sister said she obtained a restraining order after father followed her and minors to the grocery store and videoed them from a distance.
Father testified on his own behalf. Father said he moved into a motel room about a month before the hearing. He admitted his prior drug-related criminal conviction, and he had hired an attorney to "clean" the conviction.
Father denied he used inappropriate discipline with minors. However, he admitted spanking A.H. with a shoe when A.H. was in the shower. Father said A.H. had urinated on himself, and father showed A.H. a belt "because he couldn't go poop and pee."
Father admitted being depressed after his work-related accident and admitted taking medication for a while. Father denied having any current mental health issues, although he agreed to undergo a mental health evaluation if requested.
Father admitted getting into physical fights with mother, but he denied hitting mother, except in self-defense. When asked about the time he ran into mother's car, father said it was an accident. He had been injured and unable to steer his car.
Father testified he completed a batter's treatment program in 2012, but he could not recall the name of the program. The fight in front of minors had been an argument, and nothing bad happened. He believed A.H. was scared by everyone's yelling, and he denied threatening to hit A.H. if he cried. He also denied grabbing sister by the throat.
Father said he learned how to treat minors in a parenting class, and he had undergone counseling. He did not enroll in a drug treatment program because drug treatment participants use foul language, and he was not an addict. Father admitted he spent most of his time with M.H. during his visitation, and he blamed time constraints for not playing with A.H. and G.H. Father also admitted telling G.H. not to wear her prescription eyeglasses.
Under cross-examination, father said mother planted chips in both of his ears by putting something in his drink. He admitted hearing voices as a result of the chips, and the voice he heard the most belonged to an ex-girlfriend. The voices threatened to harm minors if father did not give them money, and father said minors also had chips in their ears. He testified the chips allow the voices to control sound and make it seem someone is always around him. The voices also lie and sometimes "the kids" get hurt. When asked what he was going to do about the chips, father said he would get his and minors' ears cleaned. Father testified he wanted custody of minors, and he had no idea why they would be afraid of him.
8. Court Ruling
The court considered sister and social worker's testimony credible, but the court said father's testimony did not "carr[y] much weight as far as veracity is concerned." As the court observed, "Perhaps this is the way [father] sees the world. However, it is a direct contradiction with the evidence that's been put forth by [sister] as well as with the reports that have been submitted."
Based on the evidence, the court found by a preponderance of the evidence minors were at substantial risk of suffering serious harm if left in father's care. The court relied on evidence father used inappropriate discipline with both A.H., father's history of substance abuse and drug-related felony convictions, history of domestic violence, and current mental health issues.
The court also found by clear and convincing evidence minors' placement with mother would be detrimental to minors. (§ 361.2, subd. (c)(1).) With respect to father, the court found pursuant to section 361.2, subdivision (a), placement of minors with father would also be detrimental to their health and safety. The court also reduced father's monitored visitation from six to two hours a week.
DISCUSSION
1. Sufficiency of the Evidence
Father challenges the sufficiency of the evidence to support the court's jurisdictional and dispositional findings.
"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, 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; and we note that issues of fact and credibility are the province of the trial court." [Citation.]'" (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.] '"[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]."'"'" (In re I.J., supra, 56 Cal.4th at p. 773; In re Amie M. (1986) 180 Cal.App.3d 668, 673-674.)
Section 300, subdivision (b) permits the juvenile court to assert jurisdiction where "[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 the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . ." (§ 300, subd. (b)(1).) As the California Supreme Court observed, section 300, subdivision (b)(1) "requires no more than the parent's 'failure or inability . . . to adequately supervise or protect the child.' [Citations.]" (In re R.T. (2017) 3 Cal.5th 622, 62.)
Father's opening brief goes point-by-point through the allegations of the petition in an effort to denigrate any evidence that supports the court's findings, and highlight any favorable evidence. However, "'[w]hen 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 juvenile 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. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' [Citation.]" (In re I.J., supra, supra, 56 Cal.4th at p. 773.) Father must show more than that the court could have reached a different conclusion. (In re M.R. (2017) 8 Cal.App.5th 101, 108.)
In this case, credible testimony and SSA reports show father has a current and serious mental health issue. He admitted the voices in his head tell him to kill the minors and himself, and father's ongoing fixation with a chip in his head, or ears, is quite troubling.
In addition, father has a history of domestic violence with mother, ongoing issues with inappropriate discipline of minors, and problems handling anger. Father does not have stable housing, or employment, and he does have an ongoing substance abuse problem, as evidence by his dirty tests and efforts to dilute the results of others.
A.H. expressed fear of father, and he does not always want to visit with father, let alone live with him. While father's testimony contradicts this evidence, the court found father a not credible witness. As stated above, we do not reweigh evidence or question the juvenile court's credibility determinations. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.) Substantial evidence supports the court's jurisdictional orders. 2. Section 361, subdivision (c)(1)
Section 361, subdivision (c) prohibits removal from custodial parent unless there is clear and convincing evidence of a substantial danger to the child, or a risk of such danger, and no reasonable means to protect the child without removal.
Section 361.2 provides protection for parents with whom the child did not reside at the time of the dependency petition. If such a noncustodial parent requests custody of the child, the court must place the child with that parent unless there is clear and convincing evidence of detriment to the child. (§ 361.2; In re Abram L. (2013) 219 Cal.App.4th 452, 461.) The court relied on section 361, subdivision (c)(1) and father argues the court should have used section 361 because he had joint custody of minors with mother. We disagree.
Father was not residing with minors at the time of their detention, or when the petition was filed, nor was there any evidence he and mother shared joint custody of minors. The record reflects father had an informal arrangement with mother for weekend visitation and nothing more.
However, even assuming the court should have applied section 361.2 instead of section 361, the error was harmless. (In re D'Anthony D. (2014) 230 Cal.App.4th 292, 303-304.) The required findings in section 361 are sufficiently similar to those of section 361.2 to uphold removal in this case. The juvenile court found clear and convincing evidence father posed a substantial danger to the physical health, safety, and physical and emotional well-being to minors. The evidence submitted to support the court's assumption of jurisdiction also support the court's order denying father, a nonresident parent, custody of minors.
Father also briefly argues section 361, subdivision (c)(3) may have applied, but we would reach the same result, regardless. Under the circumstances, the juvenile court correctly removed custody of minors from father.
3. Visitation
As noted above, the court reduced father's monitored visitation from six to two hours per week following the jurisdictional hearing. Father argues "[t]he court's reduction of father's visits is axiomatic, when compared to the court's order granting mother 10 hours of supervised visits a week . . . ."
We review visitation orders for abuse of discretion (In re R.R. (2010) 187 Cal.App.4th 1264, 1284), and find none here. During monitored visitation, father inappropriately talked to minors about chips being in their heads, he complained about their sister, and discussed other details of the proceedings. He abused A.H., and G.H. did not seem enthusiastic about visiting father unless he loaned her his cell phone. Thus, contrary to father's assertion, the court did not ignore the favorable aspects of the visits between father and minors. Instead, the court appropriately focused on minors' best interests. (In re S.H. (2003) 111 Cal.App.4th 310, 317.) In light of the facts presented, the court did not abuse its discretion by reducing father's visitation.
4. Father's Request For Direct Housing Assistance
Citing In re Victoria M (1989) 207 Cal.App.3d 1317, father argues SSA ignored his special needs, i.e., mental illness, and refused to provide him with "direct housing assistance to assist in reunification with his children."
As noted above, the social worker provided father with many housing referrals. She also repeatedly told him the only application for housing she could file on his behalf was with a program for which he was not qualified. According to the evidence, SSA assists people to find housing by giving them referrals. The agency does not control availability of housing assistance, nor is it a clearing house for applications for housing assistance. In short, there is no evidence SSA refused to help father find housing.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.