Opinion
B307466
06-24-2021
In the Matter of O.L., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. O.L., Defendant and Appellant.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 20CCJP02055A-B, Kim Nguyen, Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
BAKER, J.
The juvenile court assumed dependency jurisdiction over minors O.L., Jr. (O.L.) and A.R. and ordered them removed from their father's custody based on a risk of emotional harm stemming from his years-long campaign of never substantiated abuse allegations against Mother and her boyfriend. We are asked to decide whether substantial evidence supports the juvenile court's jurisdiction findings and removal order.
I. BACKGROUND
A. The Children's Father Makes Repeated Unsubstantiated Allegations of Neglect Against Mother and Her Boyfriend
O.L. was born in October 2014. A.R. was born in February 2016, roughly nine months after M.R. (Mother) and O.L. (Father) separated in June 2015. The children lived primarily with Mother and her boyfriend, but a family court order provided for frequent overnight visits with Father.
The Los Angeles County Department of Children and Family Services (the Department) received 14 referrals alleging abuse and neglect by Mother and her boyfriend between July 2015 and May 2020. The allegations made in these referrals concerned physical abuse (including multiple reports of suspicious marks on the children), emotional abuse (including reports that Mother and her boyfriend locked the children in a dark room), and general neglect (including reports that Mother's boyfriend gave the children energy drinks and alcohol). None of these allegations were substantiated by the Department, and the appellate record does not expressly identify the referring party (though some mention Father claimed to have photo and video evidence of the referred complaint).
The record does include, however, detailed reports of Father's interactions with the Department beginning in January 2020. At that time, the Department was investigating a referral concerning physical abuse and neglect of the children. Father told a Department social worker O.L. “always had bruises, ” O.L. told him Mother's boyfriend gives him energy drinks and alcohol, and both children told him Mother's boyfriend hits Mother. Father shared videos and photos that he claimed corroborated these allegations.
As described by the Department, one video shows the children's paternal grandmother “continuously” asking O.L. who hit him: “[T]he child first stated ‘a bee' and paternal grandmother told him that it could not be a bee, so he goes on by stating [the roof],' until [A.R.] states [Mother's boyfriend] was the one who hit him.” In another, Father and A.R. are watching a television news broadcast that shows a woman with a bruised face and Father asks A.R. who had similar bruising. When the child indicates Mother had similar bruising, Father “continuously” asks her what happened.
Mother, when interviewed by a Department social worker, denied Father's allegations and suggested Father was initiating child welfare referrals because he wanted to gain full custody of the children and avoid paying child support. When Father arrived to pick up the children during the interview, A.R. cried and did not want to let go of Mother's boyfriend. Mother said A.R. behaved in this manner “every time” Father picked up the children and O.L. sometimes cried too.
According to Mother, Father owed over $9,000 in child support as of January 2020.
In February 2020, police responded to a call that the children were screaming and crying at Mother's house, but the police left after O.L. indicated he was fine. O.L. and A.R. later told a social worker they were “okay” when the police came. Both children denied any fighting between Mother and her boyfriend and said they felt safe living with them. A.R. said nobody hits her and O.L. initially said nobody hits him, but he later said Mother's boyfriend hits him on his buttocks when Mother is at work.
When a social worker spoke to Father, he reported he recently noticed a bruise on O.L.'s arm. The social worker said she had not seen a bruise, and Father maintained it was “light.” Father also told the social worker that Mother's boyfriend recently fired a gun at him (Father) while he was in his car. Father then produced a “blurry” photo of a man attempting to enter his car. When the social worker pointed out that the photo was dated that day, Father explained “he downloaded it from his email and he had a hard time navigating it.” When asked about the date of the alleged shooting, Father “would try to change the subject or his dates would not match what he was reporting.” When asked to identify a neighbor who he claimed witnessed the shooting, Father pointed to an apartment but said the neighbor was “probably asleep.” Father claimed he did not report the shooting to the police because “he did not want problems.”
In March 2020, Father called the Department to report O.L. told him a bruise on his eye was caused by Mother's boyfriend hitting him. O.L. told a social worker and his teacher, however, that he hurt himself jumping on a bed. A.R. and Mother's cousin, who were both present when O.L. sustained the bruise, gave the same account. When the social worker asked Father what, exactly, O.L. told him, Father said he had only inferred Mother's boyfriend must have been responsible for hitting O.L. During the social worker's visit to Father's home, she saw the paternal grandmother remove O.L.'s pants to check for bruises. Father told the social worker “throughout” the investigation that he checks the children for bruises when he picks them up from Mother's home.
About a week after the Department first made inquiries about O.L.'s bruised eye, Father told the social worker that, weeks earlier, one of A.R.'s teachers told Father that A.R. said Mother's boyfriend was going to kill Father. When asked for the teacher's name, Father said he did not know. Later the same month (March 2020), Father sent the social worker a text message stating O.L. told him Mother's boyfriend locks him in a room while Mother is at work. During an unannounced visit to Mother's home, the social worker did not see any doors with locks on the outside. At the end of March, the Department received a referral alleging abuse of the children and requested police conduct a child welfare check. Police found no signs of abuse.
During the course of the Department's investigation, two of Mother's neighbors told a Department social worker they never heard Mother and her boyfriend fight and had no concerns that the children were being neglected or abused. Four teachers and an administrator at the children's school also reported they had no concerns that the children were being neglected or abused. None noticed suspicious marks or bruising.
Father had recently contacted the school regarding a bruise on O.L., but the school's staff did not see a bruise.
The Department filed a juvenile dependency petition in April 2020 alleging O.L. and A.R. were at substantial risk of suffering serious emotional damage within the meaning of Welfare and Institutions Code section 300, subdivision (c) as a result of Father's conduct. The petition included two counts (one for each child) specifically alleging a risk of emotional harm arising from Father's practice of disrobing the children to check for bruises, of photographing them after visits with Mother, and of making unfounded allegations of abuse prompting numerous interviews with social workers, law enforcement, and medical personnel.
Undesignated statutory references that follow are to the Welfare and Institutions Code.
Around the same time the Department filed its petition, Father reported he heard A.R. ask Mother whether she had gotten rid of mice in her home. According to Father, O.L. had been telling him “for ‘days and months' that ‘picachu' [apparently, the Pokémon character] would bite his feet and head” and Father interpreted O.L.'s “‘picachu'” reference as a reference to mice. Father also reported Mother and her boyfriend were recently arrested for fighting and the children had new bruises. Mother, when questioned by the Department, said a mouse from her neighbor's yard had gotten into the house but she bought a trap and quickly caught it. She denied fighting or having been arrested.
The Department notified Mother and Father of the juvenile dependency petition on the same day Father made this report. It is not clear whether Father was aware of the petition when he made the report.
B. Father Continues to Accuse Mother and Her Boyfriend of Abuse and Neglect Following the Detention Hearing
At a detention hearing in April 2020, the juvenile court found a prima facie case for detaining the children and released them to Mother's care. The Department subsequently continued to receive referrals alleging physical and emotional abuse of the children by Mother and her boyfriend.
A reporting party unidentified in the record alleged Mother and her boyfriend gave the children an unknown medication to make them sleep and “to make it seem like the minors are [a]utistic.” The reporting party also alleged: Mother locked O.L. in a bathroom to punish him, both Mother and her boyfriend beat O.L., and Mother threatened to hit O.L. with a belt prior to a monitored visit with Father. The reporting party further alleged A.R. said her genitals hurt because Mother's boyfriend touched her while she was showering. The reporting party claimed to live with Mother and her boyfriend, but the Department did not observe anyone else living in the home.
During visits in June 2020, a Department social worker found O.L. and A.R. to be free of visible marks or bruises. A.R. was “shy” and would not talk to the social worker. O.L. denied physical abuse and said Mother and her boyfriend punish him by not letting him play outside or with a tablet.
Father had video visits with the children between the detention hearing and the combined adjudication and disposition hearing. During these visits, the children were easily distracted and paid little attention to Father despite encouragement from a social worker and a maternal aunt who served as visitation monitors. Father complained to the social worker that the children were being “coach[ed], ” but the social worker noticed nothing inappropriate and Father would not elaborate. He also insisted-contrary to the social worker and maternal aunt who monitored the visits-that Mother was in the room with the children during their visits. Father appeared to take notes during visits and repeatedly asked the children who was with them. The Department eventually limited Father to phone visits because he and the children's paternal grandmother appeared to be recording the video visits. The Department also learned, through Mother, that Father disrupted the children's online classes. Father said he logged into the classes to communicate with the children's teachers.
A therapist for the children advised the Department that the constant child welfare investigations caused Mother to fear losing the children and her job, and this fear was negatively impacting the children's emotional well-being. According to the therapist, “‘Mother projects[ and] puts her stress and anxiety feelings outward to her children, which triggers the children's behaviors.... [E]ven if the children demonstrate excellent positive progress, it can be totally undermined by the fact that [M]other's stress will continue to trigger the children's behavior.'” Neither child was potty trained (they were ages 6 and 4 at the time), and O.L.'s speech was delayed.
In advance of the jurisdiction hearing, the Department again interviewed Mother, Mother's boyfriend, and Father. Mother continued to deny engaging in any of the conduct alleged by the person (who we know in at least some, and likely many or all, instances was Father) making referrals to the Department. She said she and the children were anxious and scared, ‘“waiting to see what... the next abuse allegation [will] be.'” Mother's boyfriend said he raised the children as if they were his own and never had any contact with Father. He too denied abusing the children.
The Department also interviewed one of Father's neighbors, who praised Father as a hardworking and responsible parent and repeated statements by Father and the children's paternal grandmother concerning Mother. The neighbor acknowledged “she was not a firsthand witness” to most of what she discussed with the social worker.
Father maintained the children had suffered unexplained injuries for years and shared a photo album in which he documented purported abuse. The album included almost 250 photos with handwritten dates between 2015 and 2020. It is not clear how many of the photos were intended to depict injuries to the children-many are normal portraits with the caption “bien”-but several dozen focus narrowly on diaper rashes and minor bruises and abrasions.
Father said he collected the photos on the advice of his attorney in family court proceedings. According to Mother, the family court warned Father against photographing the children's diaper rashes. Father did say that earlier in 2016 a Department social worker told him that “if he continued photographing his children, [the social worker would] make sure that the children [were] removed from [his care].”
C. Jurisdiction and Disposition
The juvenile court held a jurisdiction and disposition hearing in July 2020. The juvenile court sustained both petition counts against Father, finding the children were at substantial risk of suffering serious emotional damage as a result of Father's conduct. The court acknowledged “a parent has the right to be concerned about suspected child abuse, ” but believed Father's conduct-disrobing the children to check for injuries, cataloging “normal bruises and bumps that have been investigated by medical personnel, ” and “constantly” asking O.L. “who may have hit him until he gives the right answer”-went well beyond such concern. In the juvenile court's view, Father was using abuse and neglect complaints to harass and intimidate Mother. The court further found the children were made “anxious and scared” by Father's conduct and the court believed asserting jurisdiction at that time was appropriate because the requisite substantial risk existed. In the court's words, if it “wait[ed] until a four-year-old or a five-year-old begins to show signs of sleeplessness, loss of appetite, [or] cutting” to assert jurisdiction, it would be “allow[ing] the emotional distress to go too far.”
The juvenile court ordered the children removed from Father and placed with Mother. Father was granted monitored visitation and ordered to participate in parenting classes and individual counseling. Mother was also ordered to participate in individual counseling.
II. DISCUSSION
Father contends the juvenile court's jurisdiction findings are not supported by substantial evidence because his conduct did not give rise to a substantial risk of serious emotional damage. Ample authority, however, supports the juvenile court's conclusion that examining and coaching a child to support unsubstantiated child abuse allegations-particularly in order to gain leverage in a custody dispute-can pose the requisite threat to a child's emotional well-being so as to justify dependency jurisdiction.
Father's contention that the disposition order must be reversed because there were reasonable alternatives to removal also lacks merit. Even after the detention hearing, Father persisted in making unfounded allegations against Mother and her boyfriend. There is accordingly substantial evidence supporting the juvenile court's determination that the parenting class and court orders Father believes would have sufficed instead of removal would not have been adequate to address the danger to O.L. and A.R.'s emotional well-being.
A. Substantial Evidence Supports the Jurisdiction Findings
Dependency jurisdiction under section 300, subdivision (c) requires a showing that “[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....” (§ 300, subd. (c).)
1. Substantial risk of serious emotional damage
Father contends insufficient evidence supports the juvenile court's finding that the children suffered serious emotional damage or were at substantial risk of suffering the same. Because the juvenile court's jurisdiction may rest on a single ground, we address only the latter. (In re Christopher C. (2010) 182 Cal.App.4th 73, 83 (Christopher C.).)
False reports of child abuse and coaching to support such allegations may give rise to a substantial risk of serious emotional harm. In Christopher C., supra, 182 Cal.App.4th 73, the Court of Appeal emphasized dozens of child welfare referrals subjected the affected children to extensive questioning and physical examinations. (Id. at 84.) Moreover, “constant coaching... caused the children to be unable to distinguish reality from fiction.” (Ibid.) The Christopher C. court concluded that regardless of whether the alleged abuse actually occurred, this “regimen of psychological welfare [could not] help but subject the children to a substantial risk of emotional harm.” (Ibid.) Similarly, in In re A.J. (2011) 197 Cal.App.4th 1095 (A.J.), one parent's false allegations of domestic violence, abduction, and sexual abuse against the other caused their child to suffer nightmares and fear the parent making the false reports. (Id. at 1105.) The Court of Appeal held the child was at a “very substantial risk” of severe emotional damage if she continued to be exposed to the parent making false allegations. (Ibid.)
In this case, the Department and law enforcement found no basis for Father's repeated allegations of abuse and neglect. Nonetheless, Father admitted he examined the children for bruises whenever he picked them up from Mother's home and kept an exhaustive photo album recording rashes and minor bruises. O.L. and A.R. do not appear to have exhibited signs of having been coached in the same manner as the children in Christopher C., but this may be attributable to O.L.'s speech delay and A.R.'s shyness rather than a lack of attempts at coaching from Father (there was evidence Father and the paternal grandmother would repeatedly question the children and stop only when they got the desired answer). Father, or someone in his orbit, also apparently demonstrated a willingness to dissemble by posing as a mandated reporter in a call to the Department.
With all the evidence in the record of Father's repeated allegations of neglect and abuse-none substantiated; of O.L. and A.R.'s withdrawal, crying, and anxiety as a result of the repeated police, medical, and social services contacts; and of the genesis of these repeated referrals-coming only after the family court custody and child support orders; there is substantial evidence that Father enlisted his young children in a campaign to harass his former partner and/or obtain full custody of the children by means of dependency proceedings. Even if Father's campaign has not yet produced severe anxiety, depression, withdrawal, or untoward aggressive behavior in the children, there is a substantial risk that continued conduct of this type by Father, if left unchecked, would cause serious emotional damage within the meaning of section 300, subdivision (c). Father's suggestion that a substantial risk of serious emotional damage can instead be shown only by currently existing emotional damage rather than a substantial risk of the same has no basis in the plain text of the statute or case law. (See, e.g., In re Matthew S. (1996) 41 Cal.App.4th 1311, 1320 (Matthew S.) [affirming jurisdiction finding where the child had “so far... been able to deal with” his mother's delusions].)
2. Offending conduct and causation
Although section 300, subdivision (c) is “vague as to the parental conduct that would be at fault, ” the “overall scheme” set forth in section 300 makes clear “that the parental conduct branch of subdivision (c) seeks to protect against abusive behavior that results in severe emotional damage.” (In re Alexander K. (1993) 14 Cal.App.4th 549, 559.) As we have already discussed, false allegations of abuse may have this effect. (A.J., supra, 197 Cal.App.4th at 1105.)
Father contends he is not at fault for the risk of emotional damage to the children because his worries about the children had “some justification” and were, in any case, “genuine.” Neither assertion is convincing. The “justification” Father offers for his complaints to the Department-O.L.'s statement that he was spanked on the buttocks and Mother's boyfriend's use of a salt-shaker to apply baby powder to the children-falls well short of supporting his photographing, reporting, and exaggerating minor injuries, much less the unsubstantiated allegation that Mother's boyfriend hit O.L. in the face with a bottle. Further, even if Father's unfounded allegations against Mother and her boyfriend were motivated by sincere but misguided concern for the children, this would not alter the fact that he is responsible for the conditions posing a risk to his children. (Matthew S., supra, 41 Cal.App.4th at 1321 [a mother's delusional fears about her son's health supported jurisdiction finding under section 300, subdivision (c)].)
In this context, Father's contention that “[t]he juvenile courts must not become a battleground by which family law war is waged by other means” (In re John W. (1996) 41 Cal.App.4th 961, 975 (John W.)) is misplaced. In John W., the Court of Appeal cautioned that “[j]uvenile courts must be vigilant to prevent unsubstantiated allegations of monstrous behavior... from becoming a means of leverage in a custody fight....” (Id. at 967, fn. omitted.) Here, the juvenile court did precisely that. It asserted jurisdiction over the children to prevent harm likely to result from Father's misuse of the juvenile court system.
The causal link between Father's conduct and the risk to the children is readily apparent. Even if the children's developmental issues are unrelated to Father's conduct, substantial evidence supports the juvenile court's conclusion that constant physical examinations, manipulative questioning, and ensuing investigations risk causing serious anxiety or withdrawal. (See Christopher C., supra, 182 Cal.App.4th at 84-85 [explaining how coaching and investigations caused children to become withdrawn and “accustomed to blithely accusing family members of serious abuse without regard for the truth”].) A.R. is already frightened of police, and both children cry at least some of the time when Father picks them up for visits. Moreover, as the children's therapist emphasized, the atmosphere of anxiety Father has created adversely impacts the children's emotional well-being.
Indeed, Father's only argument regarding causation is that no causal analysis is possible because the Department failed to establish either offending conduct or a substantial risk of serious emotional damage.
B. Substantial Evidence Supports the Removal Order
A juvenile court may remove a child from the custody of a parent with whom the child was living at the time the petition was filed if the court “finds clear and convincing evidence” that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's... physical custody.” (§ 361, subd. (c)(1).) “‘The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]” (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.) We review a removal order for substantial evidence. (In re V.L. (2020) 54 Cal.App.5th 147, 154; see also Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
The statutory threshold for removal, viewed through the lens of the applicable standard of review, was met here. Father's conduct threatened the children's emotional well-being, and he was undeterred by the juvenile court's detention order. He continued to allege abuse by Mother and her boyfriend. He treated virtual visits as an opportunity to take notes, record the children, and question them regarding his unfounded claim that Mother was in the room with them. Previously, Father blamed Mother and her boyfriend for his own refusal to participate in a child and family team meeting. Father “has never recognized [his] bad behavior, has never expressed a willingness to change, and appears incapable of acting in an appropriate manner.” (A.J., supra, 197 Cal.App.4th at 1106.)
Father suggests there were other, less intrusive means to protect the children, including ordering Father to raise safety concerns directly with the assigned social worker, to participate in a high-conflict parenting course, and not to question the children about their time with Mother or search them for bruises. Ordering Father to direct his concerns to the assigned social worker might have prevented unnecessary police visits to Mother's home, but it would not have prevented Father from examining and questioning the children to support baseless allegations; Father's approach to monitored visits demonstrated his inability to refrain from the latter. Father's apparent inability to cease making unsubstantiated reports of abuse even after juvenile court involvement is good reason to conclude the juvenile court did not overstep in concluding removal of the children was warranted.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: RUBIN, P. J., KIM, J.