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In re J.M.

California Court of Appeals, Fourth District, Third Division
Feb 25, 2011
No. G043723 (Cal. Ct. App. Feb. 25, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. DP019337, Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Gary Paul Levinson, for Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.


OPINION

BEDSWORTH, ACTING P. J.

Gregory M. appeals from a dispositional order removing his three-year-old son, J.M., from the physical custody he shares with J.M.’s mother, Melissa G., during this dependency proceeding, and placing him in foster care. Gregory argues there is insufficient evidence to support the order against him specifically, because although there is a high level of conflict between himself and J.M.’s mother, Melissa, it is Melissa’s improper conduct which is the source of that conflict, while he has acted in a manner which is both “reasonable and warranted by the behavior of [Melissa].” Gregory views himself as having made “valiant and concerted efforts to bring [Melissa’s] behavior to the attention of the Court and law enforcement, believing that [J.M.] was at risk of harm.”

Although we cannot adopt Gregory’s position entirely, we need not go that far to conclude the court erred in depriving him of J.M.’s custody. While there is substantial support for the court’s determination that Gregory shares significant blame for the poor state of his relationship with Melissa, and that the dysfunction between them poses a significant threat of emotional harm to J.M. – facts which may be sufficient to sustain dependency court jurisdiction in this case – those facts do not justify the order removing J.M. from Gregory’s custody.

The standard for removing a child from parental custody is much different from the standard for establishing dependency court jurisdiction, and thus the issue here is whether there was sufficient evidence of circumstances demonstrating either that (1) there are no reasonable means by which J.M.’s physical safety can be maintained in Gregory’s custody; or (2) J.M. is currently suffering from severe emotional damage, and there is no way his emotional health can be protected without removing him from Gregory’s custody. There was no such evidence.

In our view, the court erred by, in effect, treating Gregory and Melissa as a single unit, blaming them equally for everything that has happened, and assessing only whether J.M. could be safely returned to their shared custody. Gregory and Melissa are not together, and do not act as a unit – in fact, that could be described as the core problem in this case – and their shared custody of J.M. is carried out separately. Thus, the court was obligated to assess whether J.M. must be removed from the custody of each parent, separately. Had it done so, it would have been compelled to conclude there is no clear and convincing evidence justifying removal of J.M. from Gregory’s custody.

The dispositional order is reversed, and the case is remanded with instructions to make a new dispositional order placing J.M. in Gregory’s custody unless facts and circumstances occurring since the prior dispositional order demonstrate that continued out-of-custody placement is necessary. To the extent that visitation between J.M. and Melissa continues, the court shall make whatever orders are necessary to facilitate that visitation in a manner which does not require Gregory and Melissa to interact directly with each other.

Appellant has asked that we take judicial notice of the briefs in a different pending appeal relating to his request for a new hearing in the trial court based upon additional evidence. The request is denied. In reviewing the dispositional order in this appeal, we consider only the evidence before the juvenile court at the time it made the order.

FACTS

J.M. was born in December of 2006, and his parents have been engaged in conflict ever since, primarily about custody, but also other things. J.M. was first referred to Child Protective Services in January of 2007, on a claim of alleged general neglect by both parents, based upon an incident in which “the child’s mother thrust the child at the father in anger, destroyed father’s personal property, and physically struggled with the father.” Melissa then “absconded with the infant” and was arrested for child endangerment and domestic violence. However, due to “the child’s young age, [and] involvement of so many witnesses for both parties”, the disposition of that case was ­­“inconclusive.” The District Attorney filed no charges.

In April of 2007, J.M. was referred (apparently by a neighbor) on a claim of potential abuse by Melissa, because he cried excessively and was underweight. SSA determined J.M. was healthy and well cared for.

There was also evidence of a referral in May of 2007, but this is explained as a “duplicate” of the April 2007 referral.

In September of 2008, Melissa took J.M. to the emergency room for alleged abuse by Gregory, due to a burn on the tip of J.M.’s index finger and a rash. Gregory denied knowledge of the injuries. Melissa later filed a complaint against the social worker who handled the referral, and asked that the matter be reassigned. The request was denied.

In the course of a “child custody investigation” conducted in March of 2009, in connection with the ongoing custody case, Gregory reported Melissa to be “erratic paranoid, delusional and irrational, ” and stated she was prone to “episodes” in which she became combative, assaultive and verbally abusive.” He also stated she had been suicidal on several occasions while pregnant, and had made several attempts to harm herself and the yet-to-be-born J.M. He said Melissa had abducted J.M. for a period of time, with the help of a third party. Gregory also reported that Melissa’s mother was diagnosed as schizophrenic, and was “heavily medicated.”

Melissa herself acknowledged to the investigator she had a family member who was diagnosed as mentally ill, but refused to say who it was, and took the position that being “diagnosed” with a mental illness did not mean the family member actually suffered from one. She also admitted she had been referred by her physician to a psychiatrist for evaluation during a prenatal visit, but claimed while she had complied with that referral, she could not remember the name of the psychiatrist she had seen. She denied she had ever abducted J.M., but said that she and J.M. had “visited several family members throughout Orange and Riverside County” for “a short period of time.” She then declined to discuss the abduction issue any further. Melissa informed the investigator she was engaged to be married and intended to relocate to New Jersey in the near future. She had not told Gregory of that plan, and “expressed surprise that the court could impede her move.”

The investigator noted that Gregory believed it was “due to ‘secret hearings, ’ criminal conspiracy[ies]’ [and] ‘fraudulent claims’” that he did not have custody of J.M. Both Gregory and Melissa were reported to have described the other as “unbalanced, controlling, argumentative, dishonest [and] lacking in anger management or parenting skills.” The investigator concluded that “one or both [parents] may be suffering from a mental illness, ” and “[b]oth parties have taken their individual positions to a level bordering on obsession.” Melissa was viewed as “evasive in regards to topics that involved mental illness and child abduction, ” while Gregory was viewed as “generat[ing] his own opinions and conclusions about the mother and Court that either were not supported or corroborated by independent agencies.” The investigator suggested the family undergo an Evidence Code section 730 evaluation, “to rule out or confirm mental illness of either parent.”

In July of 2009, Gregory referred J.M. for alleged abuse, which was substantiated. According to the referral, Melissa elbowed Gregory in the face in front of the child. Gregory obtained a restraining order.

On September 1, 2009, the family court entered a temporary custody order. In making that ruling, the court explained that “[j]oint or shared custody arrangements are usually workable when the parties can cooperate and communicate so that the children’s lives are not seriously disrupted.” But the court then noted that Melissa, at least, had not exactly succeeded in that regard, stating it was “concerned that the mother files a request for an order about ‘domestic violence’ when the alleged activity is clearly not ‘violence’”; was “concerned that there has been a California Law Enforcement Telecommunications System Restraining Order issued against [mother]”; and was “concerned that she would consider leaving the state with the child without notifying [father].” Then, despite those seemingly serious concerns, the court nonetheless decreed the parties should share joint legal and physical custody of J.M., and share time in a way that required them to hand off the child to each other at least five times per week. The court did order that “all exchanges of the child shall be calm and peaceful.”

The order requires Gregory to pick up J.M. on Mondays, Wednesdays and Thursdays “at the Fountain Valley Day Center, ” and does not specify if Melissa is expected to also be present to drop him off. However, the balance of the order requires Gregory to “return the child to the mother that same day at the Irvine Police Department, ” and to exchange him directly, at Melissa’s on both Saturdays and Sundays.

In September of 2009, Melissa referred J.M. for alleged abuse by Gregory, because he had a “bruise on his left front ankle and right rear ankle, which she believe[d] was caused by father tying up the child.” The investigation concluded there was no evidence Gregory had tied up the child. However, the child was observed by the social worker to have “Mickey Mouse ink stamps applied to [his] biceps, lower back, stomach and chest, on either side of his penis, on his buttocks and also next to the anus.” Melissa admitted “she placed the ink stamps on the child to prevent the father from sexually abusing him, as she believed the stamps would make him feel guilty.” Melissa later explained that the stamps were intended to ensure that if Gregory were sexually abusing J.M. and taking photographs to place on the internet, J.M. would be easy to identify.

In September of 2009, Gregory also referred J.M. for alleged abuse by Melissa, claiming she had yanked J.M.’s arm severely during a custody exchange. Based upon observation of a surveillance video, officers determined no abuse had occurred.

In November of 2009, Melissa referred J.M. for alleged sexual abuse by Gregory, which was deemed unfounded. In December of 2009, Melissa referred J.M. for alleged physical abuse due to a “superficial abrasion” to his wrists, which she insisted had been caused by Gregory.

On January 4, 2010, Dr. Paul Hoernig, the psychologist retained to conduct a child custody evaluation for the family court pursuant to Evidence Code section 730, filed his report. He noted Melissa did not manifest any clinical signs or symptoms compatible with a psychiatric disorder, ” but also noted “[h]er memory seemed flawed, as she was unable to recall particularly emotionally charged events or allegations made by [Gregory].” He explained “she would use denial, or deal with the queries by claiming a lack of memory for the specific situation, ” and suggested “there is a possibility that there was an attempt to cover up either a history of problems in the past, or perhaps even current behaviors.” He noted it is “possible that she has suffered emotional breakdowns in the past, ” and that her “tendency to be very guarded and withholding in terms of revealing her inner feelings adds to the possibility that some significant underlying emotional disorder exists.” He also noted she has “poor judgment and poor insight”, which may “cause difficulties in child rearing.”

Hoernig described Gregory as “an intense individual, ” who, while demonstrating no signs of mental disorder, “appeared to be preoccupied, at times, and consumed with his involvement in the custody dispute with the child’s mother.” Hoernig opined that his “judgment appeared to be impaired by virtue of his emotionality regarding his current custody dispute, ” and that he “tends to focus on small issues and thereby avoid[] dealing with what might be called the ‘big picture.’”

Hoernig also observed J.M. directly, including while at play with each parent. Both parents were described as interacting and playing well with J.M., who was in turn characterized as “doing well developmentally and show[ing] no signs of any type of psychopathology.”

Hoernig noted that the pediatrician who had been seeing J.M. most recently told him that Melissa had “repeatedly brought the child to him, making allegations of sexual abuse.” The doctor felt “she has brought the child too many times regarding this issue, since each time he reassures her that there is no indication that he has been abused. He notes that there is a consistent attempt on mother’s part to build a case against father regarding abuse.” The doctor also noted J.M. is “somewhat quiet in his presence, ” although he “interacted better with the father.”

Hoernig recommended that a custody scheme be put in place which had one parent dropping off J.M. at daycare, and another picking him up, so that they saw each other directly only on weekend exchanges. Hoernig also stated that it was his opinion “that the child is not ready to spend extensive periods of time with either parent, ” although he did not explain what he meant by “extensive periods, ” or what he viewed as the consequences of allowing that.

Finally, on January 10, 2010, only six days after Hoernig’s report, Melissa again referred J.M. for alleged sexual abuse by Gregory, taking him to the emergency room. Although an examination revealed no sign of sexual abuse, the decision was made to take J.M. into protective custody, due to the ongoing conflict between the parents.

According to the report filed by the police officer who took J.M. into custody, emergency room staff expressed concern they were examining him “every few weeks” for sexual or physical abuse, which has never been substantiated. With respect to the abuse report made that day, Melissa told the officer she had picked up J.M. from the custody exchange location, took him home and changed his diaper. She acknowledged the diaper was not actually dirty, but that she changed it merely “because the diaper was from the father’s house.” She claimed that J.M. pointed to his pelvic region and told her it hurt, saying “Daddy hurt day.” She then looked and saw “purplish bruising in the creases around the anus, ” and also noticed that “inside the anal canal the skin was cherry red in color.” (Italics added.) She claimed to have noticed this while cleaning the “interior portion of the canal.” When the officer pointed out to Melissa that the doctors had observed no bruising, she suggested that might be a product of different lighting.

According to Melissa, J.M. referred to himself as “day.” According to the physician, J.M. appeared to be saying “happy birthday.”

The police officer also reported that he had prior experience with this family, and knew of 37 earlier reports which had involved either child abuse, custody disputes, or incident reports between Melissa and Gregory. He did not specify who filed which reports, or even what percentage of the 37 each filed. He noted that “[a]ll of the abuse alleged... has been unfounded or [deemed] inconclusive by the Irvine Police or CPS, with the exception of on[e] general neglect substantiated against [Melissa].” The officer noted that he had spoken with Gregory on several occasions in the course of his involvement with the family, and opined that “he does not appear to be thinking rationally or be reasonable” because he has “claimed that the court system, the police department, Child Protective Services, [Melissa’s] attorney and boyfriend are against him, ” and he appears “more interested in proving [Melissa] is mentally unstable ... than attempting to look out for the best interest of [the child.]

Another portion of the record reflects that at least four police reports were filed by Gregory, complaining about Melissa’s non-compliance with visitation orders, and about conflicts arising during custody exchanges. He filed a fifth police report, concerning her destruction of property, prior to J.M.’s birth.

The police officer noted he had “observed” J.M. on several occasions, and believed him to be “developmentally behind for children of his age.” The officer also stated he had interviewed J.M.’s daycare teachers in December of 2009, and they had also stated he was “developmentally behind” as well as exhibiting “‘autistic’ like behavior... because [he] lacks stimulation and has an inconsistent schedule.” The officer stated it was his own belief that “due to both parents’ behavior of frequent cross reporting of child abuse which subjects [the child] to interviews by the police department, Child Protective Services, and mental health professionals, and physical exams by medical personnel, [the child] is suffering from severe emotional damage.” On that basis, the officer decided to take the child into custody, and he was placed by SSA at Orangewood Children’s Home. The officer explained this to Melissa at the hospital, and she “stated she understood this.”

In its respondent’s brief, Orange County Social Services Agency (SSA) relies upon the teachers’ statement that J.M. is exhibiting “autistic” behavior, without acknowledging it was pulled from a police report, rather than made directly to a social worker, and without acknowledging the teachers also reportedly attributed J.M.’s behavior to his lack of stimulation and inconsistent schedule.

When initially interviewed by the social worker the next day, Gregory was cooperative and expressed concern for J.M.’s welfare. However, he did not appear to take any responsibility for the circumstances which caused J.M. to be taken into custody, and instead accused Melissa of suffering from mental illness, abducting J.M., and engaging in domestic violence on more than one occasion in J.M.’s presence. Gregory stated he was willing to do whatever was necessary to have J.M. returned to his care. Gregory also stated he believed the child’s immunizations were current, while voicing concern that Melissa had taken the child to the doctor “like 200 times.” A staff member at Kaiser Permanente reported that according to their records, J.M. had been seen there approximately 116 times since his birth. Additionally, J.M. had been taken to the emergency room seven times, for a total of 123 visits.

By contrast to Gregory, the social worker noted that Melissa “presented as confused and did not appear to process” what she was being told about J.M.’s detention, and repeatedly asked the same questions over and over. Moreover, she repeatedly indicated Gregory was sexually abusing J.M. Melissa confirmed that J.M. had been seen by the doctor on numerous occasions, and while she characterized some of those visits as routine in nature, she admitted that others were prompted by her concerns that J.M. had sustained some injury or other.

Although Gregory suggested his mother would be a proper placement for the child, SSA rejected the possibility, because Gregory resided in her home. SSA also ruled out Melissa’s father for placement, because he had expressed the opinion that Gregory was “full of lies, ” and had stated he would not facilitate visitation between Gregory and J.M. because he believed Gregory was involved in Scientology, was a homosexual, and was sexually abusing J.M. These comments caused the social worker to be “concerned regarding the maternal grandfather’s ability to be a neutral placement.”

On January 14, 2010, Melissa and Gregory agreed to submit to another Evidence Code section 730 evaluation, and the court issued an order that Dr. Gerardo Canul perform one, to be completed no later than February 16, 2010. Although Canul did not conclude that either Melissa or Gregory suffered from any serious mental illness, he determined that Melissa has a “pattern of inflexible thinking and poor thinking beliefs that have negatively influenced her parenting skills, interpersonal effectiveness and ability to make appropriate decisions.” He also noted “she denies that her actions and numerous physician visits may be problematic.” He concluded “there is a strong propensity for the minor to be neglected and/or abused by the mother unless she actively seeks and receives counseling, ” while noting she “expressed no desire to take part in counseling, and specifically stated that there would be no ‘benefit’ to her taking part in counseling.”

With respect to Gregory, Canul noted he has “difficulty identifying individual, family, and parenting areas that need improvement in his life, ” and has “minimal insight into how his behaviors [and] situational stressors... have negatively influenced his decision-making.” Canul believed that Gregory’s “thought process is being negatively influenced by his monderately impaired insight.” Canul concluded “there was a moderately strong propensity for the minor to be neglected and/or abused by the father unless he actively seeks and receives counseling which directly addresses communication skills and problem-solving skills.”

The case was set for a jurisdictional and dispositional hearing on February 26, 2010. In connection with that hearing, SSA filed a report stating that Melissa “possibly has some mental health issues besides her poor judgment and inflexible thought patterns.” She “appears to have difficulty maintaining a coherent line of thought and appears to get confused, cannot follow directions, or becomes very tangential.” SSA also noted Melissa “appears not to display much emotionality whatsoever, ” and “does not demonstrate the typical emotions that many parents express when their children have been detained by social services.” Also, SSA’s report opined that Melissa’s “behaviors in putting ink stamps and transfer tattoos about the child’s body in an attempt to guilt trip the father into not sexually abusing the child is rather bizarre and not just a case of bad judgment.... The mother had much difficulty explaining her actions regarding this issue.” The report also noted Melissa’s “lack of judgment about what is appropriate parenting in that she has repeatedly subjected the child to one hundred twenty three medical appointments in a misguided attempt to protect herself from father’s allegations, or to prove the child is being abused by the father.”

In that same report, SSA noted Gregory “seems intent on building a case against mother so that he can obtain full custody as he views the mother as unstable.” Moreover, he “makes statements about the mother that are not supported by any evidence and tends to exaggerate simple facts.” The report reflects that the social worker was “struck by the amount of energy both these parents have spent focusing on the custody battle to the exclusion of other things in life.... The parents have no insight or awareness of the benefits of co-parenting or working together in a collaborative manner which would highly benefit their child.”

As for J.M., SSA’s report stated “[he] does appear to have been impacted emotionally by being exposed to his parents[’] custody battle and/or parenting techniques as the child has been reported by various caretakers to have difficulty interacting with other children and is isolative, appears to be emotionally fragile, and appears to be behind in potty training and speech development.” However, SSA’s conclusory statement that J.M. was reported by unnamed third parties to be developmentally behind is undermined by an earlier portion of that same report, which reflects that the authoring social worker herself did not necessarily agree with that characterization. Although J.M. was deemed too young to be interviewed by the social worker, she did observe him, and based upon that observation, characterized him as “developmentally on target in that he was observed as able to sit, walk, run, use utensils and feed himself.” The social worker also observed that J.M. completed several two-word sentences, although “his speech appeared slurred, clipped and lacking clarity.”

The contention that J.M. “appears to be behind” developmentally is contradicted by the only expert opinion in the record. Dr. Hoernig, the Evidence Code section 730 evaluator appointed by the family court, and who observed J.M. personally, noted in his January 4, 2010 report, that J.M. was “doing well developmentally.”

SSA’s conclusory description of J.M.’s emotional state in the February 26, 2010 report, is likewise undermined by its own evidence contained in that report. In fact, the authoring social worker herself described him as “appearing happy, cheerful, playful, calm and comfortable.” Moreover, the report reflects that a family services worker (FSW) reported meeting with J.M. and a caretaker at Boys Town, on January 27, 2010, and noted that J.M. was “friendly and engaged well with [her] and he appeared comfortable with his caretaker and his surrounding at the home.” The caretaker told the FSW that J.M. “has ‘done well’ at the home” and does “pretty [well] in group activities.” He was also reported to be sleeping and eating well. He had “not exhibited any behavioral problems since being placed at the home.”

The February 26, 2010 report, also includes the impressions of a social worker formed during two monitored visits between J.M. and each of his parents – all of which were described very positively. The social worker reported that “[J.M.] appeared comfortable with the interaction with Gregory [as he] evidenced by freely engaging in play activities and hugs.” During one visit, J.M. told Gregory “I want to go home now, ” and said he “missed Grandma [M.]” J.M. cried at the end of both visits with Gregory.

The reports on J.M.’s visits with Melissa were similar. J.M. was happy to see her, they interacted well together, and the visits ended with “crying and sorrow.” J.M. “did not want to leave his mother’s side.” On February 3, 2010, another caretaker at Boys Town reported that J.M. was “experiencing a great deal of anxiety on days that he has visits with his parents, particularly after the visits.”

SSA’s February 26, 2010 report, concluded that “at this time, the child would continue to be at risk of emotional abuse in the custody of either parent, ” (italics added) while urging the court to make a finding that “there is substantial danger to the physical health of the child if the child is returned home and no reasonable alternative means to protect that health exists.”

Both parents pleaded nolo contendere to the amended jurisdictional petition at the February 26, 2010 hearing. That amended petition alleged they “failed to protect” J.M. (Welf. & Inst. Code, § 300, subd. (b).) The petition alleged as supporting facts that: (1) Melissa took J.M. to the emergency room on January 10, 2010, because of a concern his “anal area” “presented as red.” No evidence of abuse was found. Both parents have alleged abuse by the other to various police agencies. The various allegations of abuse have “resulted in... [J.M.], being subjected to multiple sexual assault exams, child protective services interviews, police interviews, and arguments between parents, which is detrimental to the child’s emotional health and well being”; (2) During the period between the child’s birth in December of 2006 and January of 2010 (three years), Melissa “has subjected” J.M. to “at least one hundred and twenty three” examinations by medical professionals. “Said behavior places the child at serious risk of emotional harm; (3) “In [an Evidence Code section] 730 evaluation, Dr. Gerardo Canul did not find that the child’s father... has a serious mental illness. Dr. Canul did find that the father has difficulty coping with the ongoing custody conflict with the mother and has difficulty with identifying, managing and expressing his emotions”; (4) “In [an Evidence Code section] 730 evaluation, Dr. Gerardo Canul found that the child’s mother did not have a serious mental illness. Dr. Canul did find that the mother has serious personality problems that have negatively affected her parenting skills and decision making. She was also found to have poor emotional management and low insight.”; (5) Melissa “placed Mickey Mouse ink stamps on the child’s biceps, lower back, stomach and chest, on either side of his inner thighs, on his buttocks and also next to the anus, in an effort to guilt the father into not abusing the child.”; and (6) The parents have “an ongoing conflictual relationship, which on numerous occasions has escalated into incidents of verbal and physical domestic violence in the presence of the child.”

By the time the parents pleaded to the jurisidictional petition, three-year-old J.M. had been detained first at Orangewood, then at Boys Town, then back to Orangewood, and finally in a foster home placement.

The case was set for a disputed dispositional hearing on March 10, 2010. That hearing was “commenced” on March 24, 2010, and continued thereafter “based upon the availability of the Court, ” on various dates throughout March, April and early May of 2010.

At the hearing, the social worker acknowledged she was seriously concerned about the number of times Melissa had taken J.M. to the doctor, and agreed it was reasonable for Gregory to be concerned about that conduct as well. She also stated she had serious concerns about Melissa making false allegations of sexual abuse against Gregory, and that his concerns about that were also reasonable. The social worker stated she had doubts about Melissa’s mental health, and thus she believed it was reasonable for Gregory to have such doubts as well.

The social worker acknowledged there were no sustained allegations of physical abuse against Gregory, and nothing in the record to suggest he had ever been physically abusive. She noted that SSA’s “concern against [Gregory] is that he engaged in a conflictual relationship with [Melissa] that resulted in harm to the child.”

The social worker also conceded her dispositional report contained no evidence that J.M. was experiencing “extreme anxiety, ” “depression, ” or “withdrawal, ” and nothing suggesting he was “exhibiting untoward aggressive behaviors toward himself or others.” There was also no evidence he was defiant, destructive, having nightmares, or crying excessively.

These are the indicia of “extreme emotional distress” set forth in Welfare and Institutions Code section 361, subdivision (c)(3).

The social worker also agreed that if J.M. were placed in Gregory’s custody, SSA could supervise transfers to facilitate visitation with Melissa, to eliminate conflict between the parents at exchanges. She also admitted J.M. was having difficulty adjusting to foster care.

Dr. Canul also testified, and stated he had interviewed Gregory on one occasion, for approximately one and one-half to two hours. In forming his opinions, he assumed the information contained in SSA’s detention report was accurate. Canul reiterated his concerns about Melissa’s mental health, as well as Gregory’s, and stated that he viewed their problems as “very similar.” Canul testified that he believed Gregory loved J.M., but also expressed the belief that Gregory had a documented history of making false allegations against Melissa, based upon the content of the police records of the Irvine Police Department and reports from Kaiser, which were incorporated into SSA’s detention report. Canul suggested that Gregory was “more obsessive” than Melissa, because of his “persistent externalizing” and refusal to take any responsibility for the situation. Canul characterized this tendency as “worrisome.”

The reports mentioned, however, do not reflect that Gregory made false accusations against Melissa. It is Melissa, and not Gregory, who took J.M. to Kaiser repeatedly, and thus those records do not reflect Gregory’s claims. And while the record does demonstrate Gregory filed some of the complaints with the police, it does not reflect any determination he did so falsely. When asked to cite the “most egregious incidents of unsubstantiated reports that were made by [Gregory], ” Canul was unable to do so. It appears he misconstrued the reports.

Canul opined that Melissa and Gregory should stay away from each other until they had received a significant amount of counseling or therapy. He did not recommend placing J.M. with either Melissa or Gregory, due to the “highly conflicted relationship” between them. But when asked directly if J.M. could be placed with Gregory under circumstances where neither parent had direct contact with the other, Canul acknowledged it was “possible, ” and then immediately attempted to further qualify that already equivocal statement by noting that “we still have the other issues of the alleged sexual abuse, the evaluations of the child if there was sexual abuse.” Canul did not, however, explain how Melissa’s unfounded allegations of sexual abuse against Gregory – because there was no actual evidence of such abuse – might adversely impact Gregory’s ability to safely maintain sole custody of J.M.

Canul then went on to explain, rather confusingly, that “[t]here’s just a number of events that are connected to when you talk about custody, okay. So there will be something in place so that there is no conflict, but there is also this level of challenges that have been described, the Kaiser – the numerous Kaiser visits, the police involvement, the numerous allegations of child abuse, sexual abuse, it’s – so while that first scenario, in terms of no conflict face-to-face, there is other components that are challenging.” Again, however, Canul failed to explain why the Kaiser visits – which were Melissa’s doing – or the police reports – which were a product of the direct conflicts between Gregory and Melissa – would impede Gregory’s ability to maintain sole custody of J.M.

At the conclusion of the hearing, the court announced its ruling. The court stated that “the irony in this case is that neither parent, neither parent wants to see this child in foster care. Both of them argue that this child should not be in foster care, and there was an excellent way for them to avoid that. You see, both parents have misperceived these proceedings. The parents both have an interest in custody of their child. They both have an interest in the child not being in foster care.” The court then likened the situation to the Biblical story of Solomon, in which two women come before Solomon each claiming to be the mother of the same child. As the court explained it, “Solomon, in a very wise way, sizes up the situation and realizes there is no practical way of determining who the real parent is. And Solomon says, well, you know, you both have an equal claim. Both of you have a legitimate claim to this child and I got a way of solving this. I’m going to just cut that child right in half and I’ll give you each half. And we know what happened was that one of the... women said ‘No, no, no. Let the other one have it. I don’t want my child to be harmed. [¶] Wise decision, right? Got to the truth of things. Now we still don’t know to this day whether or not the woman who said that was the biological mother of that child. We only know that she was the right mother for that child because she held the child’s interests above her own. [¶] In this case, both parents have had that opportunity.... Neither parent has had the child’s interests at heart. It’s remarkable to me the evidence I’ve heard and how little I’ve heard about [J.M.], how little I’ve heard about [J.M.] I’ve heard lots of stuff about both parents. I’ve heard almost nothing about [J.M.]” The court also explained that “Dr. Canul had indicated... that to place the child with either parent would merely to perpetuate the same problems that we’ve had and that he can’t think of a way that we could pull it off while maintaining the safety this child, and frankly, I’m at my wit’s end because I can’t think of one either.”

Here, the court’s point seems to be that neither Gregory nor Melissa deserves custody of J.M. But that’s not the issue in a dispositional hearing. If J.M. can be safely maintained in the custody of either one, what they deserve is of no moment.

The court expressed its concern that the parents’ dysfunctional relationship would not be fixed without intervention: “the court is very clear that if this conduct didn’t resolve itself in the last three-and-a-half years, it’s not going to resolve itself without intervention, and that’s very clear.”

With respect to the issue of whether J.M. was actually suffering emotionally as a result of his parents’ conduct, the court first noted that SSA took the position it “need not deal with whether or not the child was actually suffering from this in an emotional way, ” but then explained that in its own view, “it’s really clear that this child has been affected by all this.” The court noted that a police officer who is “probably not qualified to diagnose... believes the child behaves like someone who’s autistic.” The court also pointed to “school personnel that say that the child is withdrawn and won’t engage with other kids, and so forth.” The court then attributed J.M.’s tendency to withdraw to the fact that “the two most important people in [his] life are constantly at each other’s throats and [he’s] three years old or [he’s] two years old, what can you do but withdraw?.... [C]learly, that’s what’s going on with this child.”

The court then told Gregory and Melissa “I want your child to be home with you. That’s what I want. I don’t want your child to grow up in a foster home. I don’t want your child to be raised by other people. I want your child to be home with you, both of you, but I will tell you, each of you, that based on what I’m seeing here, the chances of that happening are extremely unlikely unless both of you commit yourselves to working on this case towards reunification at least as hard as you folks have been working against each other all this time.... [¶]... If you folks commit yourselves to doing this and you’re able to set aside your egos... then I think you both can be successful and have your child back. [¶] But I’m telling you if I don’t see that happening, you’re never going to have your child back and somebody else is going to adopt your child....” (Italics added.)

The court then found by clear and convincing evidence that J.M. could not safely be maintained in the custody of his parents, for the reasons set forth in Welfare and Institutions Code section 361, subdivisions (c)(1) and (c)(3), and that reasonable efforts were made to prevent or eliminate the need for J.M.’s removal from parental custody.

All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

DISCUSSION

Gregory’s sole contention on appeal is that the evidence in this case was insufficient to sustain the court’s finding that J.M. cannot be maintained safely in his custody, specifically, under either subdivision (c)(1) or subdivision (c)(3) of section 361. We agree.

In examining a parent’s challenge to the dependency court’s dispositional order, we must review the record in the light most favorable to the order to determine whether it contains sufficient evidence from which a reasonable trier of fact could make the necessary findings by clear and convincing evidence. (In re MariahT. (2008) 159 Cal.App.4th 428.) However, even applying that deferential standard, we cannot conclude the court’s order – as against Gregory – was supported by sufficient evidence in this case.

In this case, for purposes of determining whether J.M. must be removed from parental custody, it was crucial for the court to separate the issue of whether both parents engaged in conduct which exacerbated the conflict between them – i.e., whether they shared fault for the circumstances which led to the assumption of dependency court jurisdiction – from the issue of whether each of them, separately, could be deprived of J.M.’s custody. Unfortunately, the court, as well as various witnesses, investigators and experts, seemed to lump Gregory and Melissa together in assessing both their conduct and the effect it might be having on J.M.

But while Gregory and Melissa shared custody of J.M., they each enjoyed their custodial rights separately, while residing in different homes. Thus, the court should have assessed the issue of whether it was necessary to remove J.M. from the custody of each parent, separately. Significantly, these parents cannot be viewed as coconspirators, with each held responsible for the conduct of the other. It is simply beyond dispute that despite sometimes engaging in similar conduct, they are not working together. With that in mind, we turn to the governing statute.

Section 361, subdivision (c), provides that “[a] dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances....”

Subdivision (c)(1) of section 361 provides that removal is proper if “[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 or guardian’s physical custody.” (Italics added.) Subdivision (c)(1) of section 361 also requires that “[t]he court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.”

And subdivision (c)(3) of section 361 provides that removal is proper where “[t]he minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor’s emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian.”

Thus, while section 361, subdivision (c)(1) provides that removal may be justified in cases of potential harm “to the physical health, safety, protection, or physical or emotional well-being of the minor, ” coupled with a finding there are no reasonable means by which the minor’s physical health can be protected without removal from parental custody, subdivision (c)(3) requires a finding the child is currently suffering from severe emotional damage, which cannot be avoided without removing the child from the home. The mere potential that parental conduct may result in severe emotional damage in the future is not enough to remove the child under subdivision (c)(3).

In this case, we have no difficulty concluding there was sufficient evidence to sustain the court’s determination that J.M. must be removed from Melissa’s custody under subdivision (c)(1) of section 361. The record demonstrates that Melissa has manifested her concerns about Gregory (whether real or imagined) in a way which directly impacts J.M. – and in a significantly adverse way. Her obsession about sexual abuse has caused her to: (1) place ink stamps all over her son’s naked body; (2) change his clean diaper and apparently inspect his genitalia (including an examination of the inside of his “anal canal”) after at least one visit with Gregory; and (3) take him to the emergency room repeatedly with assertions of sexual abuse by Gregory. Additionally, Melissa has otherwise taken J.M. to see the doctor approximately every three weeks, on average, since his birth – including numerous visits stemming from either her concern Gregory has abused him, or her concern Gregory will accuse her of doing so. Finally, there is evidence that Melissa has resorted to physical violence, as a means of venting her anger and frustration, in J.M.’s presence. By these actions, combined with her refusal to acknowledge there is anything wrong with her conduct, Melissa has demonstrated not only that she has placed J.M. at risk of harm to his physical health, safety, protection, or physical or emotional well-being, but also that his physical safety cannot be assured in her care. Those facts are sufficient to justify removal of J.M. from her physical custody under section 361, subdivision (c)(1), and we cannot quarrel with the trial court’s decision in that regard.

By contrast, even if we assume Gregory’s conduct has significantly contributed to the “conflictual” relationship with Melissa that has placed J.M. at risk of emotional harm, there is no evidence that J.M.’s physical health and safety cannot be maintained if he were placed in Gregory’s custody. There is no evidence at all that Gregory has ever inflicted physical violence on either Melissa or J.M., no evidence that he otherwise acted on his concerns about Melissa in a way which has placed J.M. in physical peril (as Melissa apparently has), and no other basis to conclude that J.M. would not be physically safe in Gregory’s custody. And absent a determination that there are no reasonable means by which the minor’s physical health can be protected without removal from Gregory’s custody, such removal cannot be properly based upon subdivision (c)(i) of section 361.

Similarly, there is no basis to deny Gregory custody pursuant to subdivision (c)(3) of section 361. That subdivision requires evidence that J.M. is actually suffering from “severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others” combined with a finding that “there are no reasonable means by which the minor’s emotional health may be protected without removing the minor from the physical custody of his or her parent.” (§ 361, subd. (c)(3).) Here, while there was some evidence (albeit slight), that J.M. had a tendency to play alone, or seem a bit withdrawn, there was nothing to suggest he was suffering any “severe” emotional trauma. The social worker acknowledged as much in her testimony, when she admitted she was aware of no such evidence.

In fact, SSA’s dispositional report, which was signed by the testifying social worker, is replete with evidence that J.M. was not suffering any significant emotional distress at the time he was detained. He is variously characterized by not only the authoring social worker, but also the FSW, and the social worker who monitored visitation as “happy, ” “friendly, ” “cheerful, ” and “playful.” Other than a speech impediment, he was not showing signs of developmental delay. Moreover, Dr. Hoernig, the only psychologist who actually observed J.M. directly, stated in a report filed only six days before J.M. was detained, that he was “doing well developmentally and showed no signs of any type of psychopathology.”

At the hearing, the court explained that its determination J.M. “has been affected” by his parents’ conflict was supported by (1) the statement of the police officer who initially took him into protective custody (whom the court itself acknowledged was “probably not qualified to diagnose”) to the effect that J.M. “behaves like someone who’s autistic;” and (2) the statements of “school personnel that say that the child is withdrawn and won’t engage with other kids, and so forth.”

However, that evidence was weak in the extreme. As the court acknowledged, the police officer, who did not testify at trial, was certainly not an expert in either child behavior or psychology, and was not qualified to diagnose severe emotional distress. Further, while that officer might have had the opportunity to observe J.M. on several occasions, when responding to his parents’ numerous calls to police, every one of those occasions, by definition, was a high stress encounter. He never saw J.M. in what could be described as a normal situation. As for the “school personnel, ” we presume the court was referring to Stephanie Daniels, the director of J.M.’s daycare center, who also did not testify at trial. But as reflected in SSA’s report, she did describe J.M. to the social worker as aloof, and stated that he “would often play alone.” However, Daniels also told the social worker that J.M. was “rarely at school for observation, as [Melissa] would drop [him] off at 10:45 a.m. and [Gregory] would pick [him] up at 11:00 a.m. and return to the center at 4:00 p.m.” Thus, by her own admission, Daniels had little basis to draw any meaningful conclusions about J.M.’s behavior.

This weak hearsay evidence, when contrasted with so much direct evidence – both in Dr. Hoenig’s expert evaluation, and from the various observations of the social workers themselves – that J.M. appeared to be friendly, happy, able to interact well with others, and doing fine developmentally, was simply insufficient to qualify as substantial evidence that J.M. was actually suffering from severe emotional distress.

But in any event, even if J.M. were suffering some severe emotional trauma, that alone would not be enough to justify his detention under subdivision (c)(3) of section 361. The court would also have to find that the trauma cannot be avoided without removing the child from the home. And since any trauma J.M. might be suffering was alleged to be the product of witnessing his parents’ conflicted interactions with each other (combined with the effects of Melissa’s disturbing reaction to her fears about the danger of physical or sexual abuse), there is no basis to conclude that trauma could not be avoided by placing him in the sole custody of Gregory.

The court’s characterization of the parental conflict which inevitably will tend to affect J.M. emotionally is exemplified by its comment that “every time [Gregory and Melissa] were arguing with each other, that child was there. Every time there was movements blocked or there was driving erratically or whatever else was going on, this child was there. Every time there was a professional involved having to investigate something, having to strip this child, having to look at the child to determine whether or not the child had been sexually abused, this child was there. This child was there at each and every stage.” These comments are focused largely on the potential harm caused to [J.M.] by the inability of Gregory and Melissa to act rationally in each other’s company, without acknowledging that this problem can be addressed by simply crafting an order which places J.M. in one parent’s custody, and provides for the other to have professionally monitored visitation in a way that does not require the parents to meet face-to-face. Such an order would also eliminate the temptation of either parent to inspect the child’s body in the wake of his time with the other parent. The custodial parent would know the other parent’s visitation was professionally monitored, and the visiting parent would simply be precluded by the monitor from engaging in any intrusive “inspections.”

In concluding there is insufficient evidence to justify removing J.M. from Gregory’s custody, we do not mean to minimize the court’s concerns about the deleterious effects of both Melissa’s and Gregory’s conduct on J.M. We are certainly drawing no conclusion that Gregory is innocent in this case. To the contrary, we have no reason to question the conclusion of nearly everyone who has come into contact with Gregory; i.e., that his own conduct has significantly contributed to, and exacerbated, the dysfunction in his relationship with Melissa. We also accept, as a virtual certainty, that such dysfunction will inevitably impact J.M. adversely. Clearly, Gregory needs to make a serious commitment to improving his means of interacting with Melissa – whether or not her own behavior ever improves – or J.M. will be the one who primarily suffers the consequences of his failure to do so.

But having said that, the law does not allow for the removal of children from parental custody on the basis that those parents are just generally shoddy and have failed to live up to reasonable expectations, or because the court believes that doing so may be the only way to shock those parents into what it views as easily achievable long-term improvement. Removal of children from parental custody is proper only in the most egregious cases.

“[O]ut-of-home placement is not a proper means of hedging against the possibility of failed reunification efforts, or of securing parental cooperation with those efforts. It is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent. The law requires that a child remain in parental custody pending the resolution of dependency proceedings, despite the problems that led the court to take jurisdiction over the child, unless the court is clearly convinced that such a disposition would harm the child. The high standard of proof by which this finding must be made is an essential aspect of the presumptive, constitutional right of parents to care for their children.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525.)

Removal of a child from parental custody is not proper merely because the court believes the parents really could improve their parenting skills, or that the child would be better off if they did. Thus, in In re Jasmine G. (2000) 82 Cal.App.4th 282, this court noted that a social worker’s opinion that parents, who lived separately, had not sufficiently internalized proper parenting skills, and that the father was experiencing marital troubles, was not substantial evidence to justify removal of the child from either parent’s home.

The goal in this dependency case, of having Melissa and Gregory learn to effectively coparent J.M. is an admirable and important one, but it cannot be confused with the standard applied to determine whether J.M. can be removed from the custody of either one. Ultimately, it may be impossible for these two parents to work together effectively – and it may also be impossible to assign full blame for that to either of them. But that does not mean, and should not mean, that J.M. should ultimately be freed for adoption by other parents – which is the path the court below has set him on by its order to remove him from Gregory’s and Melissa’s custody.

A less drastic alternative, and one imposed in family court in innumerahble cases where the parents cannot work together, is that one parent is awarded sole custody, with the other parent given restricted, or even monitored, visitation. That is what should have happened in this case. The court is free to, and should, impose whatever restrictions or conditions appear necessary to ensure that Melissa and Gregory do not have occasion to interact with each other in J.M.’s presence, and to otherwise ensure J.M. remains safe in Gregory’s care.

While such an outcome may be perceived as unfair to Melissa, or as effectively rewarding Gregory for his own part in creating this familial dysfunction, are not the operative concerns here. “Equal treatment of parents” is not the primary goal of the juvenile court. Instead, the court must adhere to the legal standards which restrict its ability to remove J.M. from parental custody, no matter how much the court may be concerned that doing so might undermine the long term prospects for achieving a functional joint custody arrangement in this case.

Finally, we note that, at least in the short run, J.M. himself is clearly better served by remaining in the custody of one parent, with the other given restricted visitation, than he is by detention in a foster home (which the social worker acknowledged has been very hard on him), with both of his parents restricted to monitored visitation. This little boy should not languish in foster care just because his parents are unable to get along. While it may be true that neither Melissa nor Gregory really deserve to have custody of J.M., it is clear that J.M. deserves to be home with at least one of the parents he loves.

In its oral ruling, the court was vehement in its belief that the parents’ dysfunctional relationship would not be fixed without intervention: “the court is very clear that if this conduct didn’t resolve itself in the last three-and-a-half years, it’s not going to resolve itself without intervention, and that’s very clear.” But of course, no one is suggesting that there be no intervention – the dependency court’s jurisdiction, which is unchallenged, gives it great power to intervene. And the dependency court’s ultimate goal – to make both parents work better together, is a worthy and important one. But the achievement of that goal is not a precondition to allowing J.M. to be released to the custody of either parent.

DISPOSITION

The dispositional order is reversed, and the case is remanded with instructions to make a new dispositional order placing J.M. in Gregory’s custody unless facts and circumstances occurring since the prior dispositional order demonstrate that continued out-of-custody placement is necessary. To the extent that visitation between J.M. and Melissa continues, the court shall make whatever orders are necessary to facilitate that visitation in a manner which does not require Gregory and Melissa to interact directly with each other.

WE CONCUR: O’LEARY, J., ARONSON, J.


Summaries of

In re J.M.

California Court of Appeals, Fourth District, Third Division
Feb 25, 2011
No. G043723 (Cal. Ct. App. Feb. 25, 2011)
Case details for

In re J.M.

Case Details

Full title:In re J.M., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Feb 25, 2011

Citations

No. G043723 (Cal. Ct. App. Feb. 25, 2011)

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