Opinion
B301506
08-05-2020
In re JACKSON C. et al., Persons Coming Under the Juvenile Court Law. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ROBERT C., Defendant and Appellant.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP04177A and 19CCJP04179A) APPEAL from orders of the Superior Court of Los Angeles County, Mary E. Kelly, Judge. Affirmed. Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel for Plaintiff and Respondent.
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In June 2019, Robert C. (father), while intoxicated, fired a gun in the family home where his 15-year-old son was sleeping. The following morning, father was briefly placed on an involuntary psychiatric hold after he admitted he had thoughts of hurting himself. The Los Angeles County Department of Children and Family Services (DCFS) subsequently filed juvenile dependency petitions alleging that father's two children were juvenile court dependents pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j). The juvenile court sustained the petitions, ordered the children placed with father and his wife, and entered an informal disposition pursuant to section 360, subdivision (b).
All subsequent statutory references are to the Welfare and Institutions Code.
On appeal, father contends (1) the jurisdictional findings were not supported by substantial evidence, and (2) the juvenile court abused its discretion by entering an informal disposition order that required father to continue attending individual counseling and to take an antidepressant prescribed by his doctor. We conclude that father's contentions lack merit, and thus we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we describe the evidence in the light most favorable to the juvenile court's findings, resolving all conflicts and drawing all reasonable inferences to uphold the court's orders, if possible. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
Father has two children, Jackson C. (born in June 2004) and Max. C. (born in April 2012). Michelle C. is Jackson's mother, and M.K. (mother) is Max's mother. Jackson's mother's whereabouts are unknown, and Jackson refers to M.K. as "mom."
A. Background
During the evening of June 21, 2019, father discharged a gun in the family home where Jackson was sleeping. The next morning, father told law enforcement he had thoughts of hurting himself, and he was transported to a psychiatric facility where he was held for approximately 24 hours.
The morning after the incident, Jackson told a children's social worker (CSW) that mother and Max had spent the prior evening at the maternal grandparents' home, and father had gone out to dinner with a friend. Jackson awoke to a loud noise and heard father screaming his name. He went into the dining room, where he saw father sitting at the dining room table holding a gun. Jackson said father looked extremely intoxicated and was rambling that he was depressed and wanted to kill himself. Jackson talked to father for about ten minutes, and father ultimately dropped the gun onto the floor. Jackson retrieved the gun, gave father a dose of Nyquil, and put him to sleep on the couch. Jackson then called one of father's friends, who picked Jackson up and took him to the maternal grandparents' home.
Jackson said he discovered after the incident that the noise that awoke him was the gun discharging into the kitchen. Jackson showed the CSW where a bullet had shattered the front of a microwave oven and then lodged in a wall. Jackson also discovered that a glass candle holder in the bathroom had been shattered. Jackson said father did not regularly drink alcohol, but he had been drinking in the five days leading up to the episode. Father had told Jackson he was drinking more than normal because he and mother were having marital problems.
Mother said she and father had been in a relationship for eleven years and had been married for four years. Mother denied that father had ever been violent, but said he struggled with depression from unresolved childhood trauma. She said father occasionally drank alcohol, but denied that he had a history of substance abuse.
The gun father discharged had belonged to the paternal grandparents. Mother said she and father usually stored the gun in an outdoor shed, but because of a recent string of home burglaries in the neighborhood, they had agreed to bring the gun in the house and store it in a locked box in their bedroom closet.
Father said he was unable to recall much of what occurred the night of June 21 because he had been very intoxicated. He acknowledged he and mother had been having marital problems, and said he feared losing his wife and children. On June 21, he had not wanted to be alone, so he had gone to dinner with a friend. He drank four glasses of vodka during dinner and became severely intoxicated. Once he returned home, he came across the gun while he was cleaning up the house. He took the gun out of the box and tried to figure out why it was jammed. As he did so, the gun went off and struck the microwave.
Father reported a history of childhood emotional abuse and recent difficulty finding work, and he admitted he had been suicidal the night of the incident. He had a prescription for antidepressant medication, but said he had not been taking it recently because he was feeling better and believed he could manage his emotions without medication. Since the incident, he had begun therapy and had made an appointment with a psychiatrist, realizing that he needed to take his medication without interruption. He also planned to begin attending Al-Anon meetings. The gun had been taken by law enforcement and was no longer in the home.
Father's discharge papers from the psychiatric facility stated that father "endorse[s] [s]uicidal ideation[,] feeling hopeless and wor[th]less[,] and put a gun to [his] head in front of minor child." Father was "diagnosed with Mood Disorder" and "referred . . . for psychiatric and therapeutic services. Without services today, patient would decompensate in the community."
B. Petitions and Detention Hearing
On July 2, 2019, DCFS filed juvenile dependency petitions on behalf of Jackson and Max. The petitions alleged that father created a detrimental and endangering home environment for the children by shooting a firearm and threatening suicide in Jackson's presence (b-1, j-1), and father's mental and emotional problems, specifically his depression and suicidal ideation, prevented him from being able to provide regular care for the children (b-2).
Count b-2 also alleged that mother failed to protect the children despite knowing of father's mental and emotional problems. The juvenile court dismissed the allegation as to mother, and thus we do not further discuss it.
On July 3, 2019, the juvenile court found a prima facie case for finding the children juvenile court dependents. It ordered the children released to father and mother under DCFS supervision.
C. Jurisdiction and Disposition Report
DCFS interviewed Jackson again on August 13, 2019. Jackson's second account of the June 21 incident was largely consistent with his first, but this time Jackson said that the gun had been on the kitchen counter, not in father's hand, and that father had said "he was depressed and might hurt himself." (Italics added.) Jackson said he had never seen father act in this manner before, describing father as a "really happy and funny person." He acknowledged mother and father had been arguing the week before the incident, but said they were "stressed out because my great grandmother was sick."
DCFS also reinterviewed father on August 13, 2019. Father said he had not wanted to be alone the evening of June 21 because did not trust himself, and he had become very intoxicated after having four drinks on an empty stomach. When he got home, he started cleaning and fixing things in his home, including the antique pistol that had belonged to his parents. He took the gun outside, pointed it at the ground to try to unjam it, and then walked back inside. Once inside, he "pointed the gun away from [himself]" and was "shocked" when the gun went off. The shot woke up Jackson, who gave father Nyquil and encouraged him to lie down on the sofa. The next morning, father told two police officers that he was scared he would hurt himself. Father said he had felt "severe emotional pain and did not know how to put out the fire." He said he did not have a plan to hurt himself, but was "just trying to find someone to talk to."
Father said he had taken an antidepressant for many years and periodically struggled with depression. He denied ever contemplating suicide and said he was not under the care of a psychiatrist. He had begun therapy, but did not feel it was helping him.
D. Father's August 31, 2019 Email
About two weeks after his August interview, father sent DCFS a lengthy email that disavowed any ongoing emotional or marital difficulties. Among other things, father said the June 21, 2019 incident was "a completely isolated incident," the family stress "completely resolved itself on July 4th, 2019, with [the maternal great-grandmother's] passing," "[t]he only great stressor this family is experiencing is this DCFS/Court case," and "[w]e are all getting along great and are a very happy family." Father further said that DCFS's reports contained many inaccuracies, that he "was not and [is] not suicidal," and he "did not stop taking [his] medication before June 21st."
E. Jurisdiction and Disposition Hearing
At the August 26, 2019 jurisdiction and disposition hearing, DCFS asked the court to sustain the petitions and order family maintenance services "while father's getting up to date on his therapy and medication." Counsel for father and for the children asked that the petitions be dismissed, asserting that the incident that brought the family to DCFS's attention "was a single, isolated incident involving misfiring of an antique gun when father was drunk." Counsel said father did not drink regularly, was not violent, and had removed the gun from the home. Therefore, counsel contended there was no substantial risk of future harm to Jackson and Max.
With regard to disposition, father's counsel said father's therapist was not recommending any further therapy for father. The court continued the hearing to allow father to obtain a letter from the therapist concerning his need for additional therapy.
The hearing resumed a month later, on September 25, 2019. At that time, father testified that DCFS had become involved with his family because "a gun was misfired in my house [at] about two in the morning" and "the police were called." Father said he had not had much to drink the night of June 21 and had not known Jackson was home. Father had been pointing the gun away from himself and trying to fix it when it "was fired," lodging a bullet across the room in the microwave oven. Father denied that he had been trying to kill himself.
Father denied ever telling Jackson that he wanted to hurt himself. Instead, he testified, "I told [Jackson] I was afraid I might hurt myself. Because what happened was when I discharged the gun, I got scared and thought like, what am I doing?" He said he made a similar statement to his wife, saying that "I told her that I was scared I could have hurt myself, and I think it's being misconstrued." Father denied that Jackson ever saw him holding the gun, testifying that he had put the gun down before Jackson came into the room. Father admitted, however, that he went to sleep after speaking to Jackson, leaving the loaded gun on the counter. Father did not know whether Jackson picked up the gun "because I was asleep."
With regard to the letter from his therapist, father admitted the therapist had been unwilling to say father did not need further treatment. Instead, the therapist's letter said only that father had attended a psychological assessment on June 25, a psychiatric evaluation on July 16, and four therapy sessions in July, August, and September.
After hearing argument, the court stated that it had "real, serious concerns about" father's testimony, noting that father "showed a lack of insight and of protective capacity." The court explained: "[Father] minimized his involvement. He minimized the fact that his son put him to bed. He minimized the circumstances surrounding it. He denied that he put the gun to his head. He blamed everything on [maternal great grandmother's] dementia . . . . And then he also indicated that . . . the only issue in the case and the only problem the family had was DCFS's involvement and that it was DCFS's involvement that was really causing the problem."
The court said it was concerned that Jackson "was very clear about what happened [in] the detention [report]. And then [in the jurisdiction report], his statements changed. And it seems to me that [father] has really been orchestrating and controlling the narrative of this case and the way he wants it to come out. And that's how now all of a sudden [Jackson] is minimizing and changing his testimony about what happened."
Based on the foregoing, the court sustained counts b-1 and j-1 of the petitions. The court stated that it "found [father's] testimony not credible[.] [T]he court did not believe that [father] came home from his visit with his friend after drinking to clean . . . the family's antique gun and it accidentally went off." Nonetheless, the court found an informal disposition pursuant to section 360, subdivision (b) was appropriate because father was voluntarily participating in therapy and taking his prescribed medication.
Father timely appealed from the jurisdiction and disposition findings and orders.
We previously have held that a section 360, subdivision (b) order for informal DCFS supervision is "tantamount to a disposition," and therefore is appealable. (In re Adam D. (2010) 183 Cal.App.4th 1250, 1260-1261.)
DISCUSSION
Father contends substantial evidence did not support the juvenile court's jurisdictional findings because there was no current risk of harm to the children. He also contends the juvenile court abused its discretion by ordering him to attend individual counseling and take an antidepressant prescribed by his doctor. As we discuss, neither contention has merit.
I.
Substantial Evidence Supported the
Juvenile Court's Jurisdictional Findings
Section 300, subdivision (b), provides that a child is within the jurisdiction of the juvenile court if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm . . . as a result of the failure or inability of his . . . parent . . . to adequately . . . protect the child." Section 300, subdivision (j) provides that a child is within the jurisdiction of the juvenile court if his or her sibling has been abused or neglected, and there is a substantial risk that the child will be abused or neglected. DCFS has the burden of proving the children are dependents of the court by a preponderance of the evidence. (§ 355, subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773.)
A section 300, subdivision (b) jurisdictional finding may not be based on a single episode of endangering conduct in the absence of evidence that such conduct is likely to reoccur. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993 (Yolanda L.); In re J.N.(2010) 181 Cal.App.4th 1010.) Although evidence of past conduct may be probative of current conditions, "[t]o establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur.' " (Yolanda L., at p. 993; In re James R. (2009) 176 Cal.App.4th 129, 135.) Whether a child is still at risk due to a parent's past conduct turns on whether that conduct "is ongoing or likely to continue." (In re Daisy H. (2011) 192 Cal.App.4th 713, 717; Yolanda L., at p. 993.)
" '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.] "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]." ' [Citation.]" [Citation.]' " (In re I.J., supra, 56 Cal.4th at p. 773.)
In the present case, there can be no real doubt that father's conduct on the night of June 21, 2019 put Jackson at substantial risk of serious physical harm. As we have described, father, while extremely intoxicated, discharged a firearm in the family's home where Jackson was sleeping. Although it is not clear whether the discharge was accidental or intentional, it is abundantly clear that father—due either to his inexperience with firearms or his intoxication—was not able to control the gun's discharge, creating the possibility that Jackson could have been shot. Father then fell asleep, leaving the loaded weapon accessible to his son. The danger to Jackson posed by such a situation is manifest. (See Yolanda L., supra, 7 Cal.App.5th at p. 995 [a child with access to a loaded gun "is at substantial risk of serious physical harm. . . ."].)
Father does not dispute that his discharge of the gun on June 21 put his son at risk of harm. He contends, however, that the juvenile court erred in sustaining the allegations of the petitions because "the episode was an isolated incident not likely to recur." He urges the episode did not result from an underlying mental health condition, but rather followed a single night of heavy drinking after a fight with his wife. Further, father says, to the extent mental health intervention was warranted, he had "successfully participated in services and mitigated any risks of abuse to the minors by the . . . jurisdiction hearing."
Contrary to father's contention, substantial evidence supported the juvenile court's conclusion that father had experienced a severe mental health crisis in the days leading up to the incident and was contemplating suicide the night of June 21. Father told the CSW that he had not eaten during the two days prior to June 21 and was fearful of being alone because he "did not trust [him]self." He drank heavily and wept during dinner. After returning home, he "got a weird feeling" and retrieved his parents' antique gun from its locked case.
Although it is not clear whether father intended to discharge the gun, it is abundantly clear that he contemplated suicide while holding the gun. Jackson said that when he was awakened by the gunshot, he found father holding the gun and rambling that he was depressed and wanted to kill himself. The next morning, father told police officers he was afraid he was going to hurt himself; and later that day, he told clinicians that he had thought about suicide and had put a gun to his head in front of his son. In short, both Jackson's and father's contemporaneous descriptions of the incident made clear that father's discharge of the gun had occurred during a serious mental health episode in which father contemplated taking his own life.
Further, while father's acute mental health crisis appeared to have subsided prior to the jurisdiction hearing, there was substantial evidence that father had not taken the steps necessary to avoid a future crisis. Mother reported that father struggled with depression resulting from unresolved childhood trauma, noting that father was only seven years old when his own father had died. Father reported suffering emotional abuse as a child and said he had taken an antidepressant for more than 30 years. At the time of the hearing, however, father had attended only four clinical sessions with a therapist—far too few to have resolved the underlying causes of his depression and suicidality.
Finally, there was substantial evidence to support the juvenile court's concern that father was minimizing both the seriousness of his mental health crisis and the danger to which he had exposed his son. Although father contends on appeal that his "insight into the episode was not relevant to the children's safety," the juvenile court was well within its discretion in concluding otherwise. Plainly, father's discharge of a gun and subsequent threat to kill himself in front of his son put Jackson at risk of both physical and emotional harm. Father never acknowledged that risk, however, instead insisting that neither he nor Jackson required any additional services because the family stress had "completely resolved itself."
As other courts have said, "[o]ne cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) Here, although father initially accepted some responsibility for the incident that brought the family to DCFS's attention, by the time of the jurisdiction hearing father was both minimizing the seriousness of the incident and insisting the family did not need any further help. The juvenile court therefore reasonably concluded that DCFS's intervention was necessary to protect the children from a risk of future harm.
We do not doubt father's love for his sons or his desire to keep them safe. Nonetheless, father's unresolved emotional issues created a situation that unquestionably put Jackson at risk of very serious harm. For all the reasons we have discussed, the juvenile court thus was well within its discretion in sustaining counts b-1 and j-1 of the petitions.
II.
Father Forfeited His Right
to Challenge the Case Plan
Alternatively, father contends that the juvenile court abused its discretion by entering a case plan that required him to participate in counseling and take an antidepressant prescribed by his doctor. Father contends he "did not need and was not benefitting from individual counseling," and he had regularly taken his medication for many years. Thus, he says, the order was neither necessary nor appropriate.
We need not consider the merits of father's objections to his case plan because he did not make them below. A party's failure to raise an objection in the juvenile court forfeits the right to claim error on that ground. (In re S.B. (2004) 32 Cal.4th 1287, 1293; Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686.) Thus, because father did not object to his case plan in the juvenile court, he forfeited his objection on appeal.
In any event, even were we to reach the issue on the merits, we would conclude that the order was well within the juvenile court's discretion. The juvenile court has broad discretion when fashioning orders for the well-being of a child. (§ 362, subd. (a) [the court "may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child"], italics added.) Here, as we have discussed, father suffered a major depressive episode and contemplated suicide in June 2019. Although father insists he "did not need and was not benefitting from individual counseling and therapy," the juvenile court was well within its discretion in reaching a contrary conclusion. And, although father contends a court order was unnecessary because he was taking his prescribed medication voluntarily, he concedes his antidepressant medication was "appropriate." We thus perceive no abuse of discretion in the juvenile court's disposition order.
DISPOSITION
The jurisdictional and dispositional findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
DHANIDINA, J.