Opinion
A167290 A167606
10-30-2023
In re Mark M., a Person Coming Under the Juvenile Court Law. v. M. M., Defendant and Appellant. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. JD21-3199
TUCHER, P.J.
Mark M. was 11 years old in 2021 when he was declared a dependent of the juvenile court without being removed from the custody of his parents. (Welf. & Inst. Code § 300; statutory references are to this code, unless otherwise indicated.) The present appeal is from orders entered during a contested hearing on a subsequent petition alleging additional grounds for the court's dependency jurisdiction. (§ 342.) The juvenile court removed Mark from appellant M. M. (father) due to father's mental health issues and domestic violence, placed Mark with mother, and issued a restraining order protecting Mark and mother from father. Father challenges the sufficiency of the evidence to support the court's rulings. We affirm.
BACKGROUND
The Original Petition
In August 2021, the San Francisco Human Services Agency (Agency) received a referral that father was neglecting the needs of his son Mark, who has autism, as well as an intellectual disability and a gastrointestinal condition called eosinophilic esophagitis. According to the reporting party, Mark needed an endoscopy to assess his gastrointestinal condition, but father repeatedly withheld consent for the procedure due to his distrust of the medical community and belief that Mark does not need medical treatment. The reporter also expressed concern about mental health issues, as father had stated that the government is watching him.
An Agency social worker went to the family home to follow up on the referral, and was admitted by mother. Father became angry, yelling at the worker and invading her physical space. He told her that he knew UCSF had sent her and he intended to sue UCSF for poisoning Mark. The social worker left the house and met with mother in the garage. About 20 minutes later, father had calmed down and explained to the social worker that his major concern about Mark's medical treatment was the use of anesthesia; father attributed Mark's episodes of physical violence to the fact that he had received anesthesia in the past. Mother expressed that father does not understand Mark's autism and related behavior issues. Before leaving, the worker told father the Agency would arrange a meeting with the treatment providers and Mark's parents.
The following week, the social worker communicated by text with father to arrange a virtual child and family team (CFT) meeting. When she asked for father's email to send a link for joining the meeting, he responded," 'No email, no zoom, no general anesthesia ever again.'" Father did not participate in the CFT meeting. Mark's medical team reported that treatment was "critical" to assess Mark's gastrointestinal condition. Mother was responsive to Mark's providers at UCSF and the Family Mosaic services agency, and she agreed with their treatment plan. She also cooperated with the Agency and requested assistance filing for divorce and seeking full custody of Mark. On September 7, 2021, a "removal warrant" was exercised and father was informed he had to leave the home.
On September 9, the Agency filed an original dependency petition on behalf of Mark, alleging jurisdiction under section 300, subdivision (b) [failure to protect] and (g) [no provision for support]. Jurisdictional allegations pertained exclusively to father: his refusal to consent to medical treatment for Mark since September 2020; mental health issues; and a history of domestic violence revolving around disagreements about Mark. The Agency also alleged father had moved out of the family home, failed to attend the CFT meeting, and his whereabouts were unknown.
The detention report provided additional background information about the family. The parents have another son, Jack, who is a few years older than Mark. They often argued about Mark, their fights sometimes became physical, and Mark and Jack had witnessed their altercations. The Agency did not have safety concerns for Jack, who was healthy and did not need medical attention. It requested that Mark be removed from father and placed with mother, and that father receive supervised visitation. Mother wanted to supervise visits due to Mark's need to maintain consistency in his routines.
At the detention hearing, the court did not detain Mark, but it found a prima facie case had been made that he came within the court's dependency jurisdiction, and it granted mother authorization to consent to his medical treatment. Several days later, the court appointed counsel for Mark, who was also designated as his guardian ad litem.
Jurisdiction and Disposition
After the detention hearing, father moved back into the family home. He stayed in the master bedroom, Jack stayed in another bedroom and mother and Mark stayed together in the living room. The Agency reported that mother was Mark's primary caretaker and also worked outside the home. Father was unemployed. According to mother, the parental grandparents, who helped pay the family's mortgage, are afraid of father and agree with mother that he needs mental health services.
On September 25, Mark was admitted to UCSF, where he stayed for several days. While under anesthesia, Mark received dental care and immunizations, and had blood work, an MRI scan, and an upper gastrointestinal endoscopy. During the hospital stay, father called and yelled at UCSF staff, sent emails that were perceived as threatening, and caused staff to fear for their safety. Mother reported that father had harassed the boys' care providers in the past, which was consistent with Agency records of prior referrals. Father had sent threatening and racist messages to an administrator at Family Mosaic, and threatening text messages to Mark's former psychiatrist. Mark's psychiatrist reported that service providers were unwilling to go to the family home because of father's mistreatment, and that father's behavior exacerbated Mark's symptoms and created a hostile environment. After Mark's September 2021 hospital stay, UCSF reported that Mark would be terminated as a patient if father did not change his behavior.
The disposition report provided the court with additional information about Mark's health-related conditions. Mark's autism causes him to engage in "Self Injury Behavior" (SIB), which includes hitting himself, and to become aggressive toward others. He will hit, pull hair, bite, and kick, and can become very aggressive, such that mother has sought assistance from the police in the past. Mark was receiving psychiatric care through Family Mosaic, which included prescription medication to manage his aggressive behaviors. He was attending school, but his SIB limited his participation in some activities, and there was concern about aggression toward others.
The Agency's jurisdiction/disposition recommendation was for Mark to be declared a dependent and remain in the home with family maintenance services. The primary concern was that if father continued to interfere with Mark's services, "Mark's health could deteriorate and/or he [could] seriously harm himself." The Agency also opined that the parents needed to learn to work together and support each other.
A contested jurisdiction/disposition hearing was held on November 29, 2021. The Agency filed an amended petition deleting the jurisdictional allegation that father had left without any provision for support (§ 300, subd. (g)), and factual allegations pertaining to past domestic violence. The court exercised jurisdiction pursuant to the amended petition, declared Mark a dependent child, and ordered that he reside with mother and father, with family maintenance services for both parents. The order giving mother sole authority to make medical decisions for Mark was maintained.
The First Status Review
In March 2022, father completed a psychological evaluation. He was diagnosed with Narcissistic Personality Disorder and Bipolar I Disorder by Dr. Watt, who recommended a medication evaluation and individual therapy, which was to include anger management. Watt identified circumstances that would likely be triggering for father due to his mental illness, including conducting Mark's appointments inside the home, and having father work with female service providers because he has "rigid view of gender roles."
In March, the parents also began attending weekly counseling with Dr. Gammino to work on co-parenting. After one session, father took the position that he would no longer participate in any services because Family Mosaic had excluded him from a CFT meeting. Gammino recommended that father be invited to future meetings to avoid amplifying his "psychosis and paranoia of being excluded." In April, parenting sessions were put on hold so Gammino could work with father individually. Meanwhile, mother continued to act as primary caregiver for Mark and Jack, worked outside the home, and was solely responsible for ensuring that Mark received the medication and therapeutic interventions he requires to address his severe autism and behavioral issues. Mother had access to respite assistance, which she rarely used because when she did, it caused conflict between her and father.
In its status review report, the Agency recommended Mark's dependency be renewed with an additional six months of services. Father continued to object to Mark's treatment and claimed that Mark's negative behaviors escalated after his hospital stay. Father also continued to interfere with Mark's treatment, causing one provider to withdraw services, and UCSF to obtain a restraining order against him. He berated the female case worker assigned to Mark's case, who was replaced with a male worker, and he was aggressively offensive toward other service providers, staff members and physicians.
There was specific concern about father's behavior toward providers of Mark's Applied Behavior Analysis (ABA) therapy, who came to the home to work with Mark and mother. During a session in January, father's frustration about Mark's situation made the therapist uncomfortable, and when she attempted to leave, father "escalated" and prevented her from pulling her car out of the garage. Later, he sent offensive text messages, causing the provider to refuse to work with the family. In March, the ACES agency that provides this service identified a new ABA provider to work with Mark four days a week. ACES recommended increasing therapy to five days and for both parents to participate, with the proviso that mother always be present. Father declined to participate and objected that four days of ABA therapy was too much. Mother agreed to increase ABA therapy to five days a week.
During this reporting period, father refused to fully engage in mental health services. He rejected a referral for a medication evaluation, stating he preferred marijuana for "medicinal use." The Agency also made a referral for anger management classes to a service provider that father found objectionable. Subsequently, the social worker arranged for Dr. Gammino to include anger management in father's individual therapy treatment goals.
The Agency reported ongoing conflict between the parents. Both denied "intimate partner violence," but the social worker witnessed loud arguments with abusive language. Mother reported an incident when father yelled at her for leaving him alone with Mark, and Jack responded by throwing a bag of lemons at father. When Jack found out mother had reported the incident to the Agency, he became upset and hit mother while she was driving. During another incident, father came out of his bedroom and yelled in mother's face until she threatened to call the police. Mother stated father was intoxicated during the altercation, which occurred in front of the children. Mother continued to express her intention to file for divorce. Father stated he did not want a divorce and intended to continue living as a family.
On June 2, 2022, the dependency was continued with six more months of family maintenance services.
The Second Status Review
During this reporting period, father continued to question the propriety of Mark's care, and relied primarily on email to ask service providers questions. UCSF had an active restraining order against father and was not responsive to father's inquiries. Other providers attempted to engage with father as best they could.
In June 2022, Mark's in-home ABA therapy provider terminated their services because of father's "pointed and judgmental questions." ACES and mother were working on a plan so Mark could obtain therapy at the ACES office while he was on a waiting list for an in-home provider that would agree to work with the family. In July, Dr. Gammino advised the Agency he could no longer provide individual therapy for father, who was unwilling to transition from Zoom to in-person sessions or to get vaccinated for COVID. Father was referred to a different counselor who provides Zoom sessions. However, he adamantly refused to participate in a medication evaluation. He also refused to participate in anger management, except in the context of his individual therapy.
In a November 2022 status report, the Agency recommended that the dependency continue, with an additional six months of family maintenance services. Mother had demonstrated exceptional efforts to parent Mark, and her skills helped create safety and well-being for Mark. Father, however, had difficulty acknowledging or addressing Mark's needs. Father's mental health issues were a barrier to Mark's safety and well-being, as they affected his home environment and the delivery of services and treatment to address his needs.
During this reporting period, the parents continued to live together but did not consider themselves a couple; they led separate lives and communicated primarily through text messages. Although father seldom came out of his bedroom, he often yelled at mother when he became frustrated because service providers did not respond to his emails. During one incident, father was overheard talking to himself and saying he was going to put a bullet in mother's head. The Agency created a safety plan that required father to move out of the house for a few weeks. After father returned home, mother reported that threats against her stopped, but she and father continued to argue about proper medical care and schooling for Mark.
Father's mental health problems also continued to alienate service providers. Father maintained that providers from an array of agencies were united in working against him, and he was focused on "getting acknowledgement" for his own ideas about Mark's treatment, which were inconsistent with the advice and recommendations of the professionals who provided care for Mark. The Agency reported that all of Mark's treatment providers had asked to only work with mother because father's behavior "interferes with service delivery to Mark at best, and [is] threatening toward those providers at worst." The Agency, service providers and mother were all concerned that if father "continue[d] to interfere with Mark's . . . services, Mark's health could deteriorate and/or he could seriously harm himself." The Agency believed that the high safety risk relating to Mark's developmental and learning disability warranted continuing court intervention. The parents' dysfunctional relationship and the need to address father's mental health were additional factors underlying the Agency's recommendation.
The status review was held on December 1, 2022, but the hearing was continued after the court specially set a hearing for December 5 to consider a request by Mark's counsel and guardian ad litem, Ms. Black, to issue a temporary restraining order (TRO) against father.
The Request for a Restraining Order
On behalf of Mark, Ms. Black filed a request for a restraining order protecting Mark and mother from father, indicating on the application that father assaulted or attempted to assault one of the persons to be protected; caused, threatened, or attempted bodily injury on one or more of the persons; and caused one or more of them to fear physical or emotional harm. Mark's counsel requested a no-contact order, except as required for court-ordered visitation; an order requiring father to move out of the family home; and an order requiring father to stay at least 100 yards away from the protected parties, their residence, workplace, and school.
Conduct supporting the application was described in an attached police report pertaining to an October 2022 domestic violence incident. According to the report, police found mother "inside the lobby" of the home, on the ground in front of a wall that had a large hole at its base. The report summarized mother's account of the incident. She told police that father came home angry at her because he found a letter about their son Mark, who was having issues at school. During the "altercation," father grabbed mother's phone out of Mark's hands. Mother followed father and hit his back with her open palm, asking for the phone back. Father pushed mother in the face with his open hand multiple times and told her he was recording the incident, stating" 'I got you now.'" Mother followed father down the stairs, and when they reached the bottom, he pushed her again so forcefully that she fell into the wall, creating a hole with her body. Then father threw the phone on the floor and left.
The police reported that mother complained of back pain and had a visible abrasion on her arm but declined an ambulance. Officers were unable to interview Mark due to his autism. Jack reported that he heard his parents fighting and stomping on the stairs, and he found mother at the bottom of the stairs. Several hours after the incident, the police were summoned again after father returned home, and they placed him under arrest. Father denied hitting mother or taking her phone. He confirmed that they argued about a report from Mark's school, but he claimed mother accosted him, and that she fell into the wall after he pushed his shoulder back to attempt to get her" 'off his back.' "
At the December 5 hearing set by the court to decide whether to issue a TRO, father failed to appear, in violation of the court's order. When the court asked about father's whereabouts, his counsel replied that father "declined to appear," and that he "does have work," but he wanted everyone to know that he moved out of the family home the previous night. Counsel stated further that father authorized him to accept service of a TRO, to contest issuance of a permanent restraining order, and to seek visitation during the pendency of the TRO.
Mark's counsel argued that exigent circumstances justified issuing a TRO that day to ensure that father moved out and mother changed the locks. The court agreed and stated that a "kick-out order" had to be included even though father voluntarily moved out, so that the police would have enforcement authority if need be. Father's counsel argued that in light of the kick-out order, his client was entitled to a "detention hearing," which required a supplemental petition pursuant to section 387.
The court considered denying father visitation in light of his nonappearance, but ultimately adopted the Agency's recommendation of one hour supervised visitation a week, which would be a lot for Mark to handle considering his disability. The social worker also explained that, although father and Mark had lived in the same home, they had minimal contact. All of Mark's "caregiving" had fallen to mother, and father rarely interacted with or even saw Mark, other than in passing, because father usually stayed in his room.
The court set December 8 as the hearing date for the anticipated supplemental petition, and December 28 for a contested hearing on the restraining order.
The Subsequent Petition
On December 7, 2022, the Agency filed a subsequent petition pursuant to section 342, instead of a supplemental petition as requested by father. Section 342 states, in part: "In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition."
Section 387 requires a supplemental petition in order to change a previous court order by removing the child from the physical custody of a parent and directing placement of the child in foster care or an institution.
The subsequent petition alleged that Mark falls within the court's dependency jurisdiction under section 300, subdivision (b) [risk of physical harm] due to (1) the parents' relationship, which is characterized by violence and intimidation perpetuated by father against mother; and (2) father's mental health issues, which impede his ability to care for the minor and to work with mother and the minor's service providers. As a third ground for the subsequent petition, the Agency alleged that Mark comes within section 300, subdivision (c) [risk of serious emotional harm] due to father's abusive and dysfunctional relationship with mother.
Detention
The Agency reported that it learned about the October 2022 domestic violence incident on November 30, when it received the results of a routine check of law enforcement records pertaining to the family's home address. The Agency believed that when the incident was considered in the context of the ongoing dependency, an order removing Mark from father's physical custody was necessary. It recommended that Mark remain in his home in the custody of mother, based on its assessment that "Mark is unsafe in either [father's] care alone, or with both parents under the same household."
The Agency reported that father loves and cares about his children, but "his mental health, anger, and the domestic violence he inflicts on [mother], all make it impossible for [father] to live in the same house as [mother] because it creates an unsafe environment for the children." Specifically, father's exertion of power and control over mother jeopardized her physical and emotional well-being, and if she was incapacitated Mark would have no caregiver. Mark's need for an adult caregiver is very high, as he requires supervision for most daily living skills and to prevent self-injuring behaviors, the Agency reported, and father had been unwilling or unable to fulfill this role. Moreover, father used his presence in the home to actively impede mother's efforts to provide for Mark's needs. He prevented in-home services, and he made the home environment so uncomfortable that mother developed a daily routine of taking the boys to the beach after school and only returning in time for dinner and bed.
At the detention hearing, father's motion to replace his appointed counsel was denied but the court granted a motion by father's counsel to withdraw from further representation of father. (People v. Marsden (1970) 2 Cal.3d 118; People v. McKenzie (1983) 34 Cal.3d 616.) Father was appointed new counsel and the matter was continued. The next day, the court found a prima facie case was made that Mark comes within the court's dependency jurisdiction, and removed him from father's custody pending disposition. At father's request, the court also postponed the hearing date for the restraining order contest.
Jurisdiction/Disposition
In a January 2023 addendum report, the Agency recommended that the court sustain the section 342 petition; vacate the prior order placing Mark in the home of the parents; order that Mark be placed with mother with family maintenance services; and order that father be offered supportive services as a non-custodial parent.
A contested jurisdiction/disposition hearing was set for February 3, to coincide with father's restraining order contest. Meanwhile, the judge who issued the TRO against father granted his request to recuse herself from the matter. Subsequently, the TRO was modified to permit limited peaceful email communication between father and mother, monitored by the Agency.
According to the addendum report, circumstances in the family home had improved since father moved out. There was "no significant change in the daily activities of Mark" because even when father lived at home, mother provided "95% of the care [for] Mark." Further, the home environment was "toxic" when father lived there, whereas mother reported that the home had become quiet and peaceful, and she no longer felt compelled to keep the children away from the home to avoid father. The Agency reported that mother maintained a home that was free of clutter and safety hazards, and established a system of organization that enabled her to successfully care for her children. However, the paternal grandparents were no longer helping the family pay their home mortgage. So mother was attempting to figure out a way to manage her finances and employment so that she could be at home with Mark when he was not in school.
The Agency updated the court about father's current circumstances. He was staying at a hotel and had obtained full-time employment at Goodwill. Father's parenting skills required further assessment as he had not performed any primary caregiving activity since the Agency's involvement with the family, and Mark "needs a lot of hands-on care." The Agency was concerned about father's lack of social support, but father rejected efforts by the social worker to assist him in developing a support network. For example, the Agency invited the paternal grandparents to a CFT meeting, but father had been estranged from his parents and brother for "years," and he refused to attend the meeting. Father also declined offers to participate in a fatherhood program and an anger management group, and continued to refuse to meet in-person with his individual therapist.
Father also continued to maintain that all of Mark's service providers were prejudiced against him. He spent his time searching for evidence of malpractice and planning lawsuits, and disregarded all information and people that did not align with his personal views. Mother had been the recipient of his grievances, which exacerbated safety concerns about him being in the home. The fact that his mental health issues were not being treated was another significant source of danger to Mark's safety and wellbeing.
The Agency also reported that the Spectrum Center where Mark attended school informed mother that they were no longer able to meet Mark's educational needs. Mother had requested an IEP meeting to assist her in locating an alternative school. As of the time the addendum report was prepared, Mark remained eligible for ABA in-home therapy and respite for mother, but he was not receiving these services "because of the negative actions that [father] took against and towards the service providers."
The February 2023 Contested Hearing
On February 3, 2023, the court held a hearing to address pending matters pertaining to Mark's dependency case. The parties agreed to hold the restraining order contest first, since that evidence was relevant to the section 342 petition. At father's request, the court bifurcated the issues of jurisdiction and disposition with respect to the section 342 petition. The status review on the original petition would trail contested matters.
The Restraining Order
Mark's appearance was waived due to his health-related conditions and limited ability to communicate. Accordingly, his application for a restraining order was based on mother's testimony and the October 2022 police report.
Mother's testimony about the October 2022 incident was largely consistent with the police report, with some clarifications. She testified that Mark was present during the altercation, watching something on mother's phone, which was resting on the table. Father came in the kitchen and confronted mother with a letter from Mark's school. He was aware of Mark's issues at school and had refused to participate in IEP meetings, but he had just discovered the letter, and he accused mother of hiding it. Father was very angry, crumpled the letter and threw it at mother. Then he grabbed mother's phone and went out the front door into an interior stairwell shared with another flat. Mother asked for her phone, following father out the door, and when he refused to return it, she hit his back with her open hand. Father turned around, put the phone in mother's face as if recording, and said," 'I got you now,'" at which point mother hit his chest with her open hand.
Mother testified that father pushed her in the face four separate times during the October 2022 incident. Twice, the force of his push caused her to fall, and the third time mother noticed that Mark was on the stairs watching. The fourth time, father pushed mother so hard she fell into the wall, causing damage to the wall and injury to her back. Then father threw the phone at her and left. Mother testified she was in pain and could not get herself up. Jack called 911, and when the medic asked if mother wanted to go to the hospital she declined because she did not want to leave her boys.
Mother was asked about other incidents when father became physical with her in ways that caused her fear. She recalled a Christmas Eve dinner approximately seven years prior to her testimony, when father threw water in her face for no apparent reason while their children were present. That same year, father was upset about something and threw a burrito at the back of mother's head.
Mother described two incidents when father assaulted her because Mark was making noise. The first occurred five years prior to her testimony. Mother was resting in a beanbag chair in their living room and Mark was on the balcony making noise. Father came into the room, placed his body on top of mother, and pressed his weight into her so she could not breathe, chastising her because she did not make Mark stop what he was doing. The incident frightened mother because father was yelling and his weight on top of her made it difficult to breath. The following year, a similar incident occurred when Mark was making noise on the balcony while mother was cleaning the kitchen. Father wanted mother to stop Mark, but she said she was busy, and he should do it himself. Then father came "towards" mother, getting so close to her that she told him to "[b]ack off." Father responded by "using his weight" to come toward mother, and said:" 'What are you going to do about it?'" Then, mother defended herself by hitting father with a Tupperware container. She felt threatened because father was angry, used his body in an aggressive manner, and was bullying her.
Mother testified that she is 5'2" and weighs 150 pounds. According to the record, father is 5'11" and weighs 270 pounds.
Mother testified about two recent distressing interactions with father. In May 2022, she was outside father's bedroom when she heard him say" 'I am going to put bullets in your head.'" Father sounded angry, and mother was frightened, shocked, and stunned by the prospect that father might have a gun. There was another incident in September, when father woke mother in the middle of the night by flashing a light in her face and demanded that she get up and talk to him and answer his question.
Mother testified that father was verbally abusive, calling her derogatory names and bullying her in front of their children. She described father's demeanor as talking down to her; getting in her face and using his larger size to make her "see his anger." This abuse happened "all the time," on a daily basis, and his level of aggression had increased in the past year. He also routinely sent mother mean, threatening, and abusive text and email messages. When father was living in the home, mother and the boys tried to stay away from the house because father made mother feel threatened and uncomfortable.
After mother concluded her testimony, the parties presented argument. The Agency, mother's counsel and Mark's guardian ad litem all concurred that mother was credible, and her testimony was more than sufficient to prove by a preponderance of the evidence that a three-year restraining order was justified. Father strongly disagreed. His counsel argued the order was not justified because mother was the aggressor during the October 2022 incident and there was no evidence of prior violence. Father also argued that the family would lose their home if the restraining order was issued because "father's name is on that home." This was a major concern for father, his counsel argued, because Mark would lose the only home he had known.
Before ruling, the court questioned the propriety of father's argument about the "family home situation," describing it as a prime example of father using his power and control over this family. The court stated that it would base it ruling on the evidence, not on information filtered through father's counsel that the court interpreted as a warning from father that his wife and children would be out on the street if he was not allowed to be back in the house. The court then granted the application for a three-year restraining order, finding that it was supported by a preponderance of the evidence.
A juvenile restraining order after hearing was signed by the court on March 1, 2023, and filed the next day. This order, which identifies Mark as the protected person and mother as an additional protected person, is effective for three years from February 3, 2023. Like the TRO, the restraining order incorporates a move-out order, a no-contact order, and a stay-away order with exceptions for court ordered visitation and peaceful email communication between father and mother.
Jurisdictional Findings
The jurisdiction hearing on the section 342 petition was held on February 3 and 7, 2023. The court took judicial notice of the restraining order evidence, including mother's testimony. Agency reports were admitted into evidence and the parties elicited testimony from Christoper Dionisio, the case worker assigned to Mark's case since March 2022. Dionisio testified that after Mark was detained from father, the Agency offered to supervise visits at the Agency's office, the only safe place for Mark to participate in a visit outside his home, but father refused to attend.
Dionisio testified that he believed it was not safe for father to move back into the family home because of father's physical violence against mother and history of interfering with Mark's medical treatment. He personally observed father's anger and had terminated one meeting with father because of his inability to regulate his emotions. On another occasion, he was conducting a home visit with Mark and mother when father came into the room and was so angry and agitated to find Dionisio in the house that the visit had to be terminated.
Dionisio believed that father's physical violence during the October 2022 incident was indicative of how bad things were at home, and it "cemented" his belief that the home had become an unsafe place. Dionisio opined that when father was violent toward mother, Mark was unsafe because "Mark is always near [mother] and almost always hearing everything." Moreover, Mark has a lot of medical needs and requires a lot of appointments that "[m]om needs to be focusing on instead of trying to manage and keep herself safe at home."
Dionisio found mother to be credible based on his experience, and he believed her testimony about the October 2022 domestic violence incident. In every meeting he had with mother, she reported verbal abuse by father and that his conduct impacted her ability to function in the home. Mother also consistently expressed concern about father's mental health. She reported that his symptoms were getting worse, and she wanted him to get help.
After the matter was submitted, the court found that the Agency sustained its burden of proof with respect to jurisdictional allegations in the section 342 petition, based on the oral testimony of mother and Mr. Dionisio, as well as the written reports and exhibits. Findings of fact supporting the court's rulings included the following: Mark was present when the October 2022 domestic violence occurred; mother's testimony in support of the restraining order was credible, her distress was genuine, and her descriptions of prior domestic violence incidents were "particularly credible." After jurisdictional allegations were sustained, the court granted father's request to continue the hearing to a later date to address disposition.
The Disposition Order
The disposition phase of the contested hearing was held on February 23, 2023. All evidence from the jurisdiction hearing was re-admitted into evidence and additional testimony was elicited from Mr. Dionisio.
Dionisio testified about the Agency's recommendation to provide inhome services for mother and supportive services for father. He explained that the Agency was not recommending any substantive change to the services that were being provided to the family, but that father's services would now fall within the category of support services rather than family maintenance. Regarding visitation for father (who would become a noncustodial parent if the proposed disposition was adopted), the Agency recommended father have monthly supervised visits with Mark following completion of a CFT meeting, where all parties would need to agree on the arrangements and logistics. Dionisio explained there were multiple factors to consider before a visitation plan could be adopted due to Mark's needs; decisions would need to be made about where visits were to be held, who would be present, what procedure to follow should Mark start "escalating," what role mother should play, and whether a therapist needed to participate.
At the conclusion of the hearing, the court vacated the prior disposition order for an in-home dependency with both parents, found that conditions still existed to exercise jurisdiction over Mark, and ordered that Mark be removed from the physical care and custody of father. The court found, among other things, that returning Mark to father would create a substantial risk of detriment to Mark, and that there were no reasonable means to protect Mark without removing him from father's physical care and custody. The court also found the Agency made reasonable efforts to provide father with services designed to aid him to overcome the problems that led to Mark's removal.
Mark's dependency was renewed, with the court finding that placement with mother was appropriate and necessary. The Agency was to provide family maintenance services to mother, and supportive services to father. Father was granted monthly supervised visitation after completion of the CFT meeting, and he was admonished to refrain from threatening, bullying, or behaving aggressively toward people involved in the supervised visits.
DISCUSSION
I. The Restraining Order
Father does not challenge the restraining order as it applies to mother. Nor does he dispute the juvenile court's findings that he committed domestic violence against mother in front of Mark. Instead, father contends that Mark should not have been named as a protected person in the restraining order.
As a preliminary matter, it is important to clarify that the juvenile restraining order was granted to Mark, with mother included as an additional protected person. Moreover, a juvenile restraining order is distinct from and governed by different standards than a criminal restraining order. (In re B.S. (2009) 172 Cal.App.4th 183, 191-192, 193 (B.S.).) The issue before us is whether Mark's restraining order is supported by substantial evidence. (In re Bruno M. (2018) 28 Cal.App.5th 990, 996-997 (Bruno M.).)
Section 213.5, subdivision (a), provides that after "a petition has been filed . . . to declare a child a dependent child of the juvenile court, and until the time that the petition is dismissed or dependency is terminated," a juvenile court may issue an order "enjoining a person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, . . . destroying the personal property, contacting, . . . coming within a specified distance of, or disturbing the peace of the child." (§ 213.5, subd. (a) (section 213.5(a)).) A restraining order issued under this subdivision after notice and a hearing may remain in effect for three years. (§ 213.5, subd. (d).)
The juvenile court also has authority under this statute to include the child's parent as a person protected by the restraining order and to "exclude[] a person from the dwelling of the person who has care, custody, and control of the child." (§ 213.5(a).) The move out order authorized by section 213.5(a) may "be issued for the time and on the conditions that the court determines, regardless of which party holds legal or equitable title or is the lessee of the residence or dwelling." (§ 213.5, subd. (e).)
In the present case, father contends the juvenile restraining order must be reversed because there is no evidence that father has abused or threatened to abuse Mark. Father is mistaken. "[W]hile evidence the restrained person has previously stalked, attacked, or inflicted physical harm on the protected child 'is certainly sufficient' to justify issuance of a restraining order under section 213.5, issuance of a restraining order does not require such evidence. [Citations.] Nor does it require evidence of a reasonable apprehension of future physical abuse. [Citation.] There need only be evidence that the restrained person 'disturbed the peace' of the protected child." (Bruno M., supra, 28 Cal.App.5th at p. 997, italics omitted; see also B.S., supra, 172 Cal.App.4th at p. 193; In re C.Q. (2013) 219 Cal.App.4th 355, 363 (C.Q.).)
A person disturbs the peace within the meaning of section 213.5(a) by engaging in"' "conduct that destroys the mental or emotional calm" '" of the person seeking protection. (Bruno M., supra, 28 Cal.App.5th at p. 997; see also Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 401 [construing parallel language in Fam. Code, § 6320].) Here, there is substantial evidence that father "disturbed the peace" of Mark by engaging in a pattern of abusive conduct toward mother, which included physical violence and serious emotional abuse.
We reject father's contention that this case is analogous to C.Q., supra, 219 Cal.App.4th 355, where a restraining order was reversed for insufficiency of the evidence. In contrast to C.Q., this dependency case involves a dependent child who has health-related conditions that give rise to unique safety concerns. Moreover, the restraining order in C.Q. was not requested on behalf of the children, but sought by the mother without the support of the Agency. (Id. at p. 357.) The C.Q. court held that the minor children should not have been included in mother's restraining order because there was no evidence "indicating the children's safety might be in jeopardy absent their inclusion in the restraining order." (Id. at p. 364.) Here, by contrast, there is substantial evidence Mark's physical and emotional well-being was at risk due to father's abuse of mother.
Arguing that evidence of violent behavior directed at the protected party is required, father cites B.S., supra, 172 Cal.App.4th 183. In that case a restraining order was affirmed based on evidence that the parent's uncontrolled physical violence jeopardized the safety of the dependent child (id. at p. 194), whereas here evidence was not offered to show that father's violent conduct was directed at Mark specifically or placed him in immediate danger. But B.S. does not hold that such evidence is required. (See id. at p. 193.) Here, there is substantial evidence that father is unable to control his anger about Mark's situation, and that he manifests that anger by abusing mother, often in Mark's presence. This conduct is sufficient evidence that Mark is at risk of harm not just because of his physical presence in the home but also because mother is Mark's primary caregiver and the person who keeps him safe from harm.
Father contends that the restraining order is not justified because other measures were in place that protected Mark adequately since father had already moved out of the home and his visits with Mark would be supervised. As support for this argument, father again cites C.Q., supra, 219 Cal.App.4th 355. In C.Q., the juvenile court erred by including father's teenaged children in a restraining order mother obtained more than a month after issuance of a disposition order removing the children from father's custody and placing them in mother's home. (Id. at pp. 362-363, 365.) Here, by contrast, the restraining order was sought by Mark's guardian ad litem, with the support of the Agency, because father's aggressive behaviors in Mark's home had intensified to an intolerable level despite the fact that the dependency was already in place and the family had received support services for more than a year.
In his reply brief, father posits that disturbing the peace of a "teenager" does not justify a restraining order. However, section 213.5 provides expressly that the juvenile court may issue an order "enjoining a person from . . . disturbing the peace of the [dependent] child," and likening Mark to an average teenager ignores Mark's health-related conditions and the impact that father's conduct had on Mark's safety.
II. Jurisdictional Findings
Father challenges the sufficiency of the evidence to support the order exercising dependency jurisdiction pursuant to the section 342 petition. (See § 342, subd. (b) [same "procedures and hearings required for an original petition are applicable to a subsequent petition"].)
We review jurisdictional findings under the deferential substantial evidence test. (In re R.T. (2017) 3 Cal.5th 622, 633.) In this case, the court sustained allegations that Mark is at substantial risk of serious physical harm (§ 300, subd. (b) (section 300(b))) and serious emotional harm (id., subd. (c) (section 300(c))). When the juvenile court has exercised jurisdiction on more than one ground, the reviewing court need find that only one ground is valid in order to sustain the order. (In re I.J. (2013) 56 Cal.4th 766, 773.) Here, we find substantial evidence supports the jurisdictional findings challenged by father on appeal.
The section 300(b) finding that Mark is at substantial risk of physical harm is supported by evidence of father's history of physically and emotionally abusive conduct toward mother, including but not limited to the October 2022 domestic violence incident that occurred while Mark was present. Domestic violence in the same household where the dependent child lives puts the child at risk of encountering the violence and suffering physical harm. (See e.g., In re L.O. (2021) 67 Cal.App.5th 227, 238; see also In re R.C. (2012) 210 Cal.App.4th 930, 941-942 [child need not witness abuse to be at danger].)
Father contends that his domestic conflict with mother should be left for resolution in family court because there is no evidence that he has ever caused Mark physical harm. However, "the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re N.M. (2011) 197 Cal.App.4th 159, 165.) Moreover, father overlooks that his domestic violence is an additional jurisdictional ground for the preexisting dependency. Evidence of father's mistreatment of mother, which included physical violence and bullying, is inextricably intertwined with father's inability to address the needs of his son. Mother is the person who keeps Mark safe, and by harming mother father necessarily places Mark at risk. Evidence about the October 2022 incident and father's past domestic violence that was presented at the restraining order hearing and/or documented in the Agency reports substantially supports the court's jurisdictional finding.
Relatedly, the section 300(b) finding is supported by evidence that Mark is at substantial risk of physical harm due to father's mental health problems. As father contends, a risk of harm cannot be presumed from the mere fact that a parent is mentally ill. (See e.g., In re David M. (2005) 134 Cal.App.4th 822, 830.) Here, the record shows that father has refused to acknowledge his mental health diagnosis and failed to accept services offered by the Agency to address these problems and the dangers they create for Mark. There is also substantial evidence that, due untreated mental health issues, father has consistently alienated medical treatment providers and social service providers who have attempted to address Mark's needs. Without that assistance, Mark is at risk of physically harming himself and others. Thus, this is not a case in which a risk of harm was presumed.
Finally, there is substantial evidence that father's conduct placed Mark at substantial risk of serious emotional harm. (§ 300(c).) Father appears to concede that Mark has been emotionally damaged, but he attributes those issues to Mark's autism and contends there is no evidence of a causal link between that damage and father's conduct. Again we disagree. As discussed, father has consistently impeded service providers from working with Mark. Most recently, when the section 342 petition was sustained, Mark was no longer receiving in-home therapy because of father's abusive treatment of ABA therapists. Depriving Mark of that service is a clear example of the causal connection between father's conduct and the risk to Mark's emotional wellbeing.
Father argues that the Agency's only witness at the contested hearing, Mr. Dionisio, admitted that he could not "say" that the October 2022 incident caused Mark to suffer emotional harm. Actually, Dionisio testified that Mark's SIB behaviors increased after the incident, and that those behavioral changes were reported by Mark's school. Dionisio felt unable to offer an expert opinion that Mark's behavioral changes were "caused by observing" the domestic violence between his parents. But, based on his own observations, Dionisio believed that Mark was affected adversely by father's conduct because Mark was always near mother and reacted to things that happened in his presence.
Father appears to take the position that because Mark's emotional disturbances can all be attributed to his autism and related SIB, there is no substantial evidence that father has caused or will cause Mark emotional harm. The causal link between father's conduct and the risk of harm to Mark is established by substantial evidence of father's continual interference with both mother's caregiving and the delivery of needed services by outside providers. In other words, Mark's emotional wellbeing was at risk because father prevented others from providing Mark with the care he needs.
III. The Disposition Order
Father contends the disposition order removing Mark from father's physical custody is not supported by substantial evidence. (See e.g., In re Anthony Q. (2016) 5 Cal.App.5th 336, 344 [disposition findings are reviewed for substantial evidence].) Relying on section 361, subdivision (c) (section 361(c)), father argues there is no substantial evidence that (1) Mark will be at risk of harm in father's custody, or (2) there are no reasonable means to protect Mark without removing him from father's custody.
Section 361(c) provides that "[a] dependent child shall not be taken from the physical custody of his or her parents, . . . unless the juvenile court finds clear and convincing evidence" that "[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." (§ 361(c)(1).) Importantly, section 361(c) also provides that "[t]he court shall consider, as a reasonable means to protect the minor," the option of removing the offending parent from the home and allowing the nonoffending parent to retain physical custody based on a showing that he or she can protect the child from future harm. (§ 361(c)(1)(A).)
Under the facts presented here, the juvenile court was not required to make findings required for removal of a dependent child from parental custody under section 361(c)(1) because Mark was not removed from the "custody of his . . . parents." (§ 361(c).) Instead, the court avoided the necessity of removal by permitting Mark to remain in his home in the custody of mother (the nonoffending parent) and removing father from the home. Father ignores the language of section 361(c) in arguing that removal findings were required despite the fact that Mark was not removed from his home and his case is still an in-home dependency.
Our conclusion is reinforced by In re M.V. (2022) 78 Cal.App.5th 944, a case upon which father relies. The M.V. court reversed dispositional orders removing dependent children from the physical custody of both parents because there was insufficient evidence that removing the children from father (the nonoffending parent) was necessary for the children's protection, and the juvenile court failed to consider whether mother (the offending parent) could have been removed from the home. (Id. at pp. 961-966.) These errors did not occur here because Mark was not removed from his home. Instead, the court found a "reasonable means to protect the minor" (§ 361(c)(1)) by allowing him to remain in the custody of mother (the nonoffending parent) and removing the offending parent from the home.
Father insists that he was entitled to removal findings under section 361, but he fails to cite any authority that addresses an analogous situation, instead relying on cases where the dependent child was removed from his or her home. (In re Henry V. (2004) 119 Cal.App.4th 522, 528 [dependent child removed from home of single parent]; In re Ashly F. (2014) 225 Cal.App.4th 803, 810 [dependent children removed from family home without considering reasonable means to protect children in their home, including removing mother (offending parent) from the home instead]; see also In re I.R. (2021) 61 Cal.App.5th 510, 520-521 [dependent child removed from father, who maintained a separate home].)
Father contends that even a noncustodial parent is entitled to findings to justify removal of a dependent child from his or her custody, citing section 361, subdivision (d) (section 361(d)). To support this argument, father requests judicial notice of a 2017 assembly bill that amended various provisions in section 361. This request is denied. (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 671, fn. 10 [courts do not take judicial notice of matter not relevant to issue at hand].) Indisputably, section 361(d) requires the juvenile court to make findings to justify removal of a dependent child from "the physical custody of his or her parents . . . with whom the child did not reside" when the dependency was "initiated." The issue here is whether such findings are required when the dependent child is not removed from his home and remains in the physical custody of a nonoffending parent.
As our background summary reflects, pursuant to the original dependency petition, the court declared Mark a dependent child and without removing him from his home under section 361, the court ordered family maintenance services to ameliorate the conditions that necessitated the dependency. That disposition was authorized by section 362, subdivision (c) (section 362(c)). Since the subsequent disposition order challenged in this appeal continues Mark's in-home dependency, albeit with family maintenance services to mother only, the Agency contends that the juvenile court was not required to make removal findings under section 361 to justify removing Mark from father's physical custody. Although the Agency cites no authority that is directly on point, its reasoning is consistent with the statutory framework.
At a disposition hearing to determine "what services the child and the family need to be reunited and free of court supervision," the court has a range of options, "from dismissal of the petition [citation] to declaring dependency, removing physical custody from the parents, and making a general placement order for the child." (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302.) Within that range, it may be "appropriate" to "declare the child a dependent and, without removing the child from his or her home, order family maintenance services to ameliorate the conditions that made the child subject to the court's jurisdiction. [Citations.] Alternatively, if the court determines by clear and convincing evidence there is a substantial danger to the physical health, safety, protection or physical or emotional well-being of the child if the child remains in his or her home and there is no other reasonable means to protect the child [citations], . . . the child must be removed from the physical custody of his or her parents and placed 'under the supervision of the [county] social worker who may place the child' in an appropriate home." (Bridget A., at pp. 302-303, italics added.) In the present case, the court elected the dispositional option to not remove Mark from the home and thus was not required to make findings to justify his removal.
Alternatively, if section 361 findings were required to remove Mark from father's custody, we would still affirm the disposition order. As discussed in our background summary, the juvenile court did make express findings that Mark is unsafe in father's physical custody and that there is no reasonable means to protect Mark without removing him from father. Substantial evidence supports both findings. Father's conduct placed Mark at substantial risk of physical and emotional harm. He engaged in domestic violence with mother while Mark was present, and mother is not only Mark's primary caregiver but the only parent capable of meeting his needs. He also abused his parental role in the home to alienate service providers that Mark needs to be physically and emotionally safe. We recognize that there is strong evidence that father's actions are manifestations of his desire to protect the son he loves, but despite his intentions, there is substantial evidence that the risk of harm to Mark justifies the juvenile court's dispositional findings.
DISPOSITION
The appealed orders are affirmed.
WE CONCUR: FUJISAKI, J. PETROU, J.