Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD224953
CANTIL-SAKAUYE, J.
Father, A.G., appeals from a dispositional order removing the child, B.G., from his custody. Father contends there were reasonable means of protecting B.G., short of removing her. He also contends there was insufficient evidence that B.G. was suffering from severe emotional distress. We shall affirm.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
On October 16, 2006, the Department of Health and Human Services (DHHS) received a referral from the Sacramento Police Department that B.G., born January 13, 2001, had reported her father struck her on “her butt, legs, and arms with a leather strap and belt buckle.” She also reported she had bruises left on her body and was hit daily. B.G. also claimed her stepmother “spanked her on the butt and for punishment put[] her in cold water in the bathtub.” She indicated she did not feel safe with father or stepmother. B.G.’s paternal grandmother, Audrey, confirmed that father had left welts on B.G.’s upper legs and buttocks and she had seen him slap her in the face. B.G. also said father and stepmother fight and yell, and slap each other when they fight. When she was interviewed, B.G. was adamant she did not want to live with her father. She wanted to live with Audrey.
Father denied any abuse, although he acknowledged spanking B.G. Father explained B.G.’s complaints, saying she had been at his mother Audrey’s house, and Audrey had coached her to say these things. Father also stated that B.G.’s mother, Jessica, had not been in her life since B.G. was three months old, as she “had left to be with another man.” B.G. was detained and a Welfare and Institutions Code section 300, subdivision (b) petition was filed on October 17, 2006.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
Mother was located on November 17, 2006. Mother reported she and father had ended their relationship when B.G. was eight months old and she moved out because of “constant arguing” with Audrey. After she moved out, she maintained contact with B.G. until father told her he was leaving to go to Peru and was taking B.G. with him. She had also been paying child support for B.G. and trying to find her. Both mother and Audrey reported father had problems with his temper.
During the period prior to the disposition hearing, the social worker received a number of complaints about father’s behavior during visits. He refused to leave at the end of one visit and was hostile and intimidating toward the staff. The social worker supervising the visits was concerned father’s behavior would escalate to violence. Father told B.G. her grandmother did not love her “or she would not have reported the abuse.” Father’s inappropriate behavior continued, culminating with a visit during which he told B.G. to “tell everyone she doesn’t want to go home with anyone but” him and her stepmother. He also left a phone message with DHHS that he intended to have all future conversations with social services and all visits with B.G. recorded.
A contested jurisdiction/disposition hearing was held on January 25-29, 2007. B.G. testified father had hit her with a belt, hit her on the hands, hit her on the face, spanked her bottom and taken her toys away. She testified her stepmother made her take a cold shower to punish her and spanked her. B.G. also testified that when her father and stepmother fought, they yelled at each other and hit each other.
Father denied ever hitting, slapping or spanking B.G. He denied that his wife had ever spanked B.G. or that he knew she had punished B.G. by making her take a cold shower. He also denied that he and his wife had ever engaged in domestic violence.
In January 2007, the parties agreed to amend the petition, to allege that father had a history of physically abusing B.G., including inappropriate corporal punishment which had resulted in injury to B.G. and placed her at risk of serious physical harm. The court found there was sufficient evidence to establish the allegations of the petition as amended. B.G. was declared a dependent of the court and placed with father under supervision. Mother was granted supervised visitation. Father, mother and stepmother were all offered reunification services.
Father was ordered to comply with a case plan. This plan included counseling for B.G. and for father and stepmother, including on issues of physical abuse, domestic violence, anger management, and parenting classes. Father, mother and stepmother were ordered to participate in conjoint counseling. Father was also ordered to facilitate an introduction between B.G. and mother within 30 days.
On February 21, father had not yet discussed the issue of her biological mother with B.G. That same day, father also advised the social worker that B.G. was no longer in counseling, that the counselor had “cancelled” her from therapy and that there was no need for further counseling for B.G. because “there’s nothing wrong with her, she’s fine.”
Because father had failed to do so, the social worker introduced B.G. to her mother on February 28, 2007. The visit went well. B.G. was smiling and affectionate with mother and excited to see her again. However, B.G. told her mother that father had told B.G. mother was bad. When B.G. got in the car, the social worker noted “[t]he child was very clearly prepped for this visit by the father and possibly the stepmother again, as she got in the car, she immediately began to tell me my daddy says that Jessica is bad and my grandmother Audrey is bad.” B.G. said she wanted to see mother again, but her father did not want her to.
Father told B.G. to “tell the judge that her [step]mommy and daddy are good and that [mother] Jessica and grandmother, Audrey are bad.” When B.G. was brought home, she immediately told her stepmother that her mother was not bad, she was good. B.G. later reported father was very angry about her visit with mother and insisted mother was “not a good person.” Stepmother also told B.G. mother was “bad” and had “left her when she was a baby.”
The social worker grew concerned that father was planning to take B.G. to Peru, and thought that the child should be removed from father’s home. These concerns were based on the fact that the stepmother is Peruvian and was returning to Peru for three months, furniture was being removed from the home and B.G. indicated they were moving. B.G. had also missed 20 percent of her school days since being returned to father.
On March 2, 2007, B.G. was described as upbeat and articulate and not under as much emotional strain as would be expected. Within one week, she was showing strain at visits with Audrey. B.G. relayed that father told her to say that her grandmother was bad and told her to say bad things. B.G. also talked again about the previous abuse from father and stepmother. While talking about the experiences she began sucking her thumb, tears welled in her eyes and she was visibly strained. The social worker warned father about the stress he was putting B.G. under by coaching her to say negative things to her grandmother. Father denied “prepping” B.G. before the visit.
On March 7, 2007, father was reminded of the requirement of conjoint counseling. He indicated he was willing to participate in this. On March 16, 2007, father was again reminded of the requirement that he engage in counseling and anger management classes. He said he did not understand why he had to participate in these services, but would do so.
The social worker continued to report concerns about father coaching B.G. and the emotional stress B.G. was under because of this coaching. By April 12, 2007, B.G. was consistently showing emotional strain at visits with her mother. She was teary-eyed and visibly stressed. At one visit with her mother, B.G. stood up and said she had something to say, she told mother she did not want her gifts. She was teary-eyed and trembling. She told mother she did not love her or like her and did not want to visit with her. Mother asked if someone told her to say that and B.G. did not answer, but looked afraid and teary.
B.G. was also afraid to return to father without ensuring she had said what she was supposed to say. She would get visibly distressed at saying these things, and reported she got in trouble at home if she accepted mother’s gifts. Upon returning home from visits with mother, B.G. would immediately report to father what she had told mother.
On April 26, 2007, when the social worker asked B.G. why she had to say negative things to Jessica, she became very quiet, put her head down and was visibly shaken. When she was confronted with her father having instructed her to say these things, she got very quiet and appeared depressed. She said that a “puppy” had told her to say these things and that Jesus would know if she did not say them and would tell her stepmother. She also stated “the devil would get her” if she did not say what she was supposed to say. She became very shaken at this point and said she was very afraid. She also reacted by violently scribbling across the pictures she had been carefully coloring earlier. Coming to the end of the visit, she crawled under the table saying she was afraid and did not want the devil to get her. After B.G. revealed everything she had been instructed to say to Jessica, she became very upset, although she did not cry. She again stated she was very scared. She was trembling, withdrawn, hiding under the table and “showing signs of stress and strain by deep breathing and mood change.”
By April 30, the social worker had scheduled an urgent counseling appointment for B.G. Father was frustrated at bringing her back to counseling and claimed he did not understand why it was necessary. Father also showed up at the counseling center and requested B.G.’s records. The center wanted to see B.G. at an alternate location because they felt father represented a threat.
On May 4, 2007, a home assessment for mother’s home was conducted and a Family Reunification Social Worker met with the mother and advised her that B.G. was going to be removed from the father’s care. Although mother stated that she was not expecting B.G. to be placed with her, she was delighted to have the opportunity to reunify with her and that she was able to financially provide for B.G. On May 7, 2007, B.G. was placed into mother’s home. While placed in mother’s home, B.G. was doing well. She was eating and sleeping well, having good visits with her half siblings, and was enrolled in school.
On May 22, 2007, a subsequent petition pursuant to section 342 was filed. As a result of that petition, B.G. was detained and placement was continued in mother’s home pending the jurisdiction/disposition hearing. The petition alleged that B.G. was suffering emotional abuse by the father, in that she had “been programmed to make statements about her mother and paternal grandmother during visits,” was “rewarded or punished according to whether or not she performs,” and was “suffering serious emotional damage evidenced by severe anxiety, tearfulness, trembling, withdrawal, strained deep breathing, mood change, and fear as a result of the father... instructing and pressuring the child to rehearse negative statements and behaviors and then perform” them to her mother and grandmother.
On May 24, 2007, DHHS filed a section 388 petition seeking to have B.G.’s placement officially changed from father to mother. The court found placement with the father was not in B.G.’s best interest, and ordered that B.G. “remain in the care and custody of the Director of the Department of Health and Human Services” and that B.G. remain with mother under an overnight visitation order. The detention hearing was continued and a contested jurisdictional hearing was set.
At the June 5, 2007 hearing, B.G.’s counsel requested there be a no-contact order between father and B.G. He noted, having spent time with B.G., “she is absolutely terrified of seeing her father at this point in time, and it would be, I believe, acutely damaging to her at this point in time to be forced or to even discuss having a visit. [¶] Basically the child turns into almost literally jelly with fear at the idea that her father might be [] able to see her through an open door. At his point in time I watched her crawl underneath furniture in the witness room and position herself in a way to try to be invisible from the lobby into the witness room. She was cowarding [sic], putting her back against the wall, shivering and asking to be in a position where the father could not see her.” The social worker also noted that B.G. was refusing to visit with father.
The matter was submitted and the court found that continued residence in the home of father was contrary to B.G.’s health, safety and welfare and ordered her to continue living in the home of mother. The court also ordered a no-contact order between father and B.G., based on B.G.’s fearful behavior.
B.G. testified at the contested sections 388 and 342 hearings. She testified that she wanted to now visit with her father. She testified that father and stepmother used to make her say things that were not true, such as that she did not love mother, that mother was not her mother, and that she did not want toys from mother. She was told if she did not say those things, she would get timeouts and have to take long naps. She testified that before the initial detention, she would get punished with spankings, having to go to bed early and taking a cold shower. She had been slapped in the face and hit with a belt by both father and stepmother. She testified she was no longer afraid of either of them.
Father denied planning to abscond with B.G., denied she had inappropriate absences from school, denied coaching her to say negative things to mother and denied saying negative things about mother. Father was now participating in services, including counseling and anger management. It was noted, however, that he did not start participating in these services until B.G. was removed from his custody. Father testified he had completed all the classes required of him. A psychological evaluation of father indicated he could benefit from services and be able to reunify with B.G., but only if he was willing to accept responsibility for his part in the case. However, father showed no signs of being willing to accept that responsibility.
Stepmother also denied she had ever coached B.G. to make negative statements to mother, denied ever speaking badly about mother, denied that father ever had said things about mother, denied ever threatening B.G. that the devil would get her, denied ever hitting B.G. and denied making B.G. take a cold shower as punishment. Stepmother refused to participate in reunification services.
The matter was continued over the next few months for various reasons. Finally on December 10 and 11, 2007, testimony in the matter concluded. B.G. had been living with mother during those intervening months and father maintained supervised visits.
Mother had completed parenting classes and individual counseling and B.G. was thriving in her home. B.G. was very happy living with her mother and had adjusted well. She was doing well in school and had perfect attendance.
Stepmother did not have visitation. There had been concerns with respect to stepmother’s behavior at some of father’s visits, particularly with respect to unauthorized attendance at father’s visits.
The court sustained the section 342 petition, finding the allegations that B.G. was at risk of suffering serious emotional damage true by a preponderance of the evidence. The section 388 petition was continued to the following day.
The following day, B.G. testified on the 388 petition. She testified she wanted to live with mother, because mother had never hurt her. She wanted to have visits with father and stepmother also. She wanted to keep the visits with father at once a week. She did not want to return to living with father because he had hurt and frightened her.
In addition to her testimony in the courtroom, B.G. also testified in chambers. Father’s counsel referenced that testimony, saying “the examination of [B.G.] in chambers was from my client’s perspective, as I see it, an unmitigated disaster.” Father believed that B.G. was being “programmed by other people” to say the things she was saying.
The transcript of that testimony is not included in our record on appeal.
The court found clear and convincing evidence that there was a substantial danger to B.G.’s emotional well-being and that she was suffering severe emotional damage. The court also found reasonable efforts had been made to prevent the need for removal from father’s home. The court found placing B.G. with mother would not be detrimental to her safety or well-being and that it was in B.G.’s best interests to be placed with mother. Accordingly, B.G. was removed from the custody of her father and placed with mother. Father was to have regular visitation, and reunification services were ordered for father.
DISCUSSION
I.
The Trial Court Did Not Err in Removing B.G. from Father
To support an order removing a child from parental custody, the juvenile court must find 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, subd. (c)(1); see In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The court also must “make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor” and “state the facts on which the decision to remove the minor is based.” (§ 361, subd. (d).)
Removal findings are reviewed under the substantial evidence test set forth above (In re Heather A., supra, 52 Cal.App.4th at p. 193), and evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Father contends the trial court erred in removing B.G. from him, because there were reasonable means to protect B.G. other than removal. To support this claim, father contends DHHS should have changed his case plan to include additional counseling for him and therapy for B.G. Father also contends he did not have the opportunity to implement the psychologist’s suggestions, such as individual therapy for him. We are not persuaded.
The record here demonstrates there were no reasonable means to protect B.G. short of removal from father’s home. Father demonstrated he was unwilling to comply with court orders, particularly with regard to the provision of services. Between January 29, 2007, and May 7, 2007, he failed to participate in any services for himself, questioning why they were even necessary, failed to get the ordered counseling for B.G., and refused to facilitate the meeting and relationship between B.G. and mother. These failures and refusals came in the face of repeated reminders from DHHS that he had to participate in services and his assurances that he would.
He also not only failed to facilitate “the positive and natural relationship between the child and her mother,” as was ordered, he actively sought to damage and to obstruct that relationship. He did not tell B.G. of mother within the 30 days the court ordered. Instead, the social worker was required to tell B.G. Father told B.G. mother was bad and had left her when she was a baby. He coached B.G. to tell mother she did not love her, or like her and did not want to visit with her. He coached her to throw tantrums and to refuse hugs and gifts from mother. He told B.G. if she did not do as instructed, “the devil would get her.” He also told her that mother only brought her presents so she could take custody of B.G. and her husband could kill B.G. so she would be a “vegetable” like her younger brother.
Father was repeatedly told to participate in services himself and to return B.G. to counseling. He did not. The social worker ultimately procured additional counseling for B.G. and father continued to express frustration with the requirement. He did not himself begin to participate in services until after B.G. was removed from his home.
Father was also repeatedly told not to coach B.G. for her visits with mother and was advised his actions were emotionally abusive and damaging to B.G. Despite this advice, he persisted in his misconduct toward the child, even as the evidence of emotional damage to B.G. increased.
Father claims he should “have been given an opportunity to [implement... the recommendation[s] put forth by the psychologist” prior to B.G.’s removal. The psychologist recommended individual treatment and family treatment. Individual and family counseling were already a part of his case plan; a part he chose not to participate in.
There is no evidence in the record that he has participated in counseling services. Nor did father accept any responsibility or express any remorse for his misconduct towards B.G. Given father’s repeated refusals to comply with court ordered services, his failure to respond to repeated concerns expressed by the social worker about the emotional strain he was causing B.G., his refusal to facilitate the relationship between B.G. and her mother, and his active efforts to in fact sabotage that relationship, we fail to see what further services could have been offered which would have alleviated the risk to B.G.
II.
The Trial Court Did Not err in Finding B.G. Was Suffering from Severe Emotional Distress
Section 300, subdivision (c) applies when “[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care.”
“The statute thus sanctions intervention by the dependency system in two situations: (1) when parental action or inaction causes the emotional harm, i.e., when parental fault can be shown; and (2) when the child is suffering serious emotional damage due to no parental fault or neglect, but the parent or parents are unable themselves to provide adequate mental health treatment. [¶] In a situation involving parental ‘fault,’ the petitioner must prove three things: (1) the offending parental conduct; (2) causation; and (3) serious emotional harm or the risk thereof, as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior.” (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)
Father contends in this case, there is not sufficient evidence that B.G. had suffered, or was at risk of suffering, severe emotional damage. Father minimizes the grave emotional impact of his misbehavior on B.G.
Here, the record shows father’s misconduct, relative to B.G.’s visits with mother and grandmother, was putting her under increasing emotional strain. After being coached to question why her grandmother had called the police and instructed not to hug or kiss her grandmother, B.G. was crying, sucking her thumb and visibly strained. In the months that followed, B.G. was instructed to tell mother she did not love her, and did not want to visit her, she was told to throw tantrums and refuse gifts and hugs from mother. She was told that Jesus would know if she did not perform as told, and threatened that the devil would get her and that mother was going to let her become a “vegetable” like her younger brother.
As time progressed, the required performances took an obviously increasing emotional toll on B.G. She was teary and visibly stressed. She became quiet and visibly shaken. She appeared depressed. She violently scribbled over pictures she had been carefully working on earlier. She got ill after drinking juice at a visit, because she had been instructed not to accept things from mother. She repeatedly said she was afraid. She was trembling, had a noticeable mood change, was breathing deeply, withdrawn, and hiding under tables. B.G.’s counsel described her as “absolutely terrified” of father. He had witnessed her shivering, cowering and hiding under tables, to avoid father seeing her.
This record adequately demonstrates B.G. was suffering, or at risk of suffering, serious emotional damage which was escalating as father’s misconduct continued unabated. Father’s misconduct cannot be characterized as “run of the mill fl[a]ws in [his] parenting style” or simply “poor communication skills” as he suggests. B.G. was handling the new information about her biological mother well, with little strain. By requiring performances, including even tantrums, in which B.G. said negative things to mother and refused gifts and affection and by threatening B.G. with retribution from the devil if she failed to perform, father created and exacerbated serious emotional damage to B.G.
Unlike the father in In re Alexander K., the evidence here did not focus solely on B.G.’s behavior. Nor was the finding based on a single episode committed six years earlier. Rather, here there was a causal connection between father’s conduct and B.G.’s emotional state. Here, over the course of months immediately preceding B.G.’s removal from his home, father repeatedly engaged in emotionally abusive behavior towards B.G. which resulted in her demonstrably showing increasing levels of emotional stress and damage.
Lastly, contrary to father’s claim, Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051 does not hold that expert testimony is always necessary to establish serious emotional damage. A juvenile court need not rely on expert psychological or psychiatric evidence to support its jurisdictional findings. “[E]xpert witnesses are appointed only where ‘expert evidence is or may be required...’ [citation], and their testimony is limited to ‘a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....’ [Citation.] Because the matter to be determined at the jurisdictional hearing is whether a child is at substantial risk of harm at the hands of a parent, due to parental acts or inaction, if that assessment can be made within ordinary experience, no expert is necessary.” (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202, fn. omitted.) The state of the record in this case was such that the assessment of emotional damage to B.G. could be made based on ordinary experience. No expert opinion was necessary.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: NICHOLSON, Acting P. J., RAYE, J.