Opinion
B276745
12-06-2017
In re PRISCILLA A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JUAN A., Defendant and Appellant.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK15337) APPEAL from orders of the Superior Court of Los Angeles County. Julie Fox Blackshaw, Judge. Affirmed. Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
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In this juvenile dependency case, defendant and appellant Juan A. (Father) challenges the juvenile court's jurisdiction and disposition orders. In particular, Father argues the juvenile court erred in exercising dependency jurisdiction over his daughter Priscilla A. (Daughter) because she was not at substantial risk of serious physical harm and, even if she had been, Father neither did nor failed to do anything to cause that risk of harm. On May 4, 2017, we issued our original opinion, reversing the juvenile court's orders. (In re Priscilla A. (2017) 11 Cal.App.5th 551.) Subsequently, our Supreme Court granted the Los Angeles County Department of Children and Family Services' petition for review and deferred further action "pending consideration and disposition of a related issue in In re R.T., S226416 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court." (In re Priscilla A., S241995, Supreme Ct. Mins., July 12, 2017.) On October 11, 2017, our Supreme Court transferred the appeal back to this court with "directions to vacate [our May 4, 2017] decision and to reconsider the cause in light of In re R.T. (2017) 3 Cal.5th 622. (Cal. Rules of Court, rule 8.528(d).)" (In re Priscilla A., S241995, Supreme Ct. Mins., Oct. 11, 2017.)
Having considered this appeal in light of In re R.T., supra, 3 Cal.5th 622, we conclude the juvenile court's orders must be affirmed.
BACKGROUND
The factual and procedural summary that follows is taken from our original opinion. (In re Priscilla A., supra, 11 Cal.App.5th at pp. 553-559.)
1. Prepetition Events
a. Daughter's Difficult Transition from El Salvador
Daughter arrived in the United States from El Salvador in April 2014, when she was 11½ years old. She came to the United States to live with Father, who wanted Daughter to have better opportunities than those available in her birth country. Upon arrival in the United States, immigration services detained Daughter for two months. She arrived at Father's home in Los Angeles in June 2014.
Daughter moved in with Father and his family, which included his wife (Stepmother) and four other children, ages one, two, 12 and 17. This was a difficult transition for Daughter. She had a tough time getting along with her new family, especially Stepmother. Daughter did not like doing chores or following the family rules. Daughter often tested and broke the rules and was disrespectful. She did not want to dress modestly. She did not communicate comfortably with Father, did not want to eat with the family (despite being asked to do so), did not want Stepmother to drive her to school (despite being offered), and did not tend to her personal hygiene.
Nonetheless, Daughter reported feeling safe in Father's home. She knew Father would listen to her if she decided to talk to him. She said, " 'I don't want to [talk to him] but I know he will listen.' " Daughter denied any type of abuse at home.
Almost everyone interviewed by the Department, including Daughter herself, indicated that Daughter lied a lot. In fact, the reason the Department filed a petition in this case was based on a story that Daughter later recanted (discussed below). In addition, Daughter told her mother that Father hit her, but later said he never did. She said her brother raped and sexually assaulted her in El Salvador, but later admitted that was not true. She also said she wanted to return to El Salvador, but later said she wanted to stay in the United States and live with her maternal uncle in Texas. It is difficult to tell whether or when Daughter told the truth.
Father never abused Daughter or any of the other children. Father gave Daughter an allowance and stated he " 'would talk to [Daughter] for hours and try to explain to her right from wrong. I never hit her but I would take things she liked like her computer, TV.' " At one point, in light of Daughter's troubling behavior and at her insistence, Father investigated whether and how Daughter could return legally to her mother in El Salvador. He stated he wanted Daughter either to stay with him or to return to her mother in El Salvador because they are her parents and are responsible for her care. Father believed his problems with Daughter began when he told Daughter her clothes were not appropriate for her age. " 'She doesn't like to be told what to do. She doesn't like to be told to dress modestly.' " Father acknowledged Daughter had behavior problems and that it would take time to build a relationship with her.
Stepmother never abused her children or Daughter, although she slapped Daughter's face once when Daughter was arguing with her. There were no injuries or marks as a result of that slap. Stepmother reiterated many of the things Father had reported, including that Daughter was disrespectful, did not like the family rules, and did not like being told to dress modestly. Stepmother said she had Daughter's best interests in mind and was concerned for Daughter's safety. Daughter would leave the house early and return late from school. Stepmother stated she tried to explain many things to Daughter when she first arrived in the United States, but Daughter refused to listen. Stepmother acknowledged the difficulties of not being Daughter's biological mother. Stepmother expressed surprise at many of the things Daughter would say and, eventually, Stepmother stopped trying to discipline her. According to Stepmother, Daughter said she hated Stepmother because she had married Father. Stepmother also indicated she believed at times Daughter acted out on purpose because she wanted to be sent back to El Salvador. Stepmother explained she and Father had investigated whether and how Daughter could return legally to El Salvador.
b. October 2015 Referral
On Monday, October 26, 2015, the Department received a referral alleging Daughter was at risk of abuse from Stepmother and Father. The referring party reported then 13-year-old Daughter was late to school that morning because she had to walk to school and almost passed out from hunger when she arrived. According to the referral, Daughter said she had not eaten since Saturday, Stepmother would cook for everyone in the home except for Daughter, and Stepmother would drive the other children to school but made Daughter walk to school. Daughter also said Stepmother hit her on the mouth with a wooden spoon and "busted" her lip. But Daughter indicated the incident had happened a week earlier so her lip injury had healed. Daughter said Father was aware of everything but refused to protect her. The referring party reported Daughter appeared depressed and cried all the time because of the way Stepmother treated her.
As a result of the October 2015 referral, a Department social worker interviewed Daughter, Father, Stepmother, and other family members. Daughter admitted she had lied about not being fed and being forced to walk to school. She also admitted she lied about Stepmother hitting her in the mouth with a wooden spoon. Instead, both Daughter and Stepmother explained they had been arguing when Stepmother slapped Daughter in the face with her hand and there had been no injury. That was the only time Stepmother hit Daughter. There was no evidence of any type of abuse by anyone. The Department referred Daughter to therapy services and the family to in-home counseling. The Department did not immediately file a petition on Daughter's behalf.
c. First Involuntary Hospitalization December 20, 2015, to January 4, 2016
Almost two months after the October 2015 referral, on December 20, 2015, Daughter was involuntarily hospitalized as a result of threats she made to her own safety. Daughter told a Department social worker she was home alone when she "couldn't take it anymore" so she took a knife and left. She went to a neighbor's house and asked for help. Daughter told the neighbor she wanted to kill herself, although at some point she threw the knife away and never did hurt herself. The neighbor took Daughter to a police station. At the same time, Father was at the police station filing a missing persons report because he could not locate Daughter. Daughter was taken to a hospital because she had threatened to hurt herself.
At the hospital, Daughter reported feeling depressed and suicidal. She said she had thoughts of suicide for the past 18 months and thoughts of stabbing herself with a knife. Daughter stated she felt Stepmother overly disciplined her and there was tension between them. Daughter also reported having nightmares and episodic flashbacks about sexual trauma as well as feeling antagonistic toward her 12-year-old stepsister. She also reported she was raped and sexually abused by both her brother and her stepfather in El Salvador when she was nine and 10 years old.
Daughter was diagnosed with major depressive disorder, attention deficit/hyperactivity disorder, posttraumatic stress disorder, insomnia, and problems related to parent-child relationships, education, and social environment. On January 4, 2016, she was discharged from the hospital and released to Father, who consented to starting Daughter on medication.
d. Second Involuntary Hospitalization January 6 to January 25, 2016
On January 5, 2016, the day after Daughter was discharged from the hospital, Father called the police because Daughter was missing again. Daughter told a Department social worker that she left home that afternoon because Stepmother had been mean to her, called her names, and laughed at her. Father reported that Daughter had climbed out her window. Daughter went back to the same neighbor's house, where she remained outside for some time. It is unclear whether Father or the police picked up Daughter from the neighbor's home, but eventually, in the early morning hours of January 6, 2016, she was readmitted to the hospital because she threatened to hurt herself.
At the hospital, Daughter stated she felt depressed and indicated she "could not take it anymore" and would rather end her life than have Stepmother argue with her and yell at her. She reported that when she returned home from the hospital the day before, Stepmother was angry, yelled at her, and accused her of lying. Daughter said Stepmother would never like her, made her feel unwelcome, and they would never get along. She said living with Father made her want " 'to take a knife and cut her wrists.' " She again reported being raped and sexually assaulted by both her brother and her stepfather in El Salvador. Both Father and Stepmother stated they wanted to help Daughter and have her return home. Father did not believe Daughter would hurt herself, but believed she made those threats in order to get out of the house. Father did not agree to voluntary removal of Daughter, but wanted to work with her and start therapy services.
Because Daughter threatened to harm herself if returned to Father and Stepmother, the hospital would not release her to Father. The Department obtained a removal order from the juvenile court and the hospital discharged Daughter to Department custody. Daughter received the same diagnosis as she had upon her last hospital discharge, with the addition of housing, economic, and "other psychosocial and environmental" problems. She was prescribed medication and placed with a foster parent.
2. January 28, 2016: Petition and Detention Hearing
On January 28, 2016, the Department filed a single-count Welfare and Institutions Code section 300 petition on behalf of Daughter. The petition alleged Father was unable to provide appropriate care and supervision for Daughter because Daughter refused to return to his home and care. In its detention report, the Department concluded the risk to Daughter of future abuse under Father's care was " 'High.' " As support for its conclusion, the Department pointed to Father's conduct, "which includes, but is not limited to, general neglect as evidenced by the fact that [Daughter] reported Step-Mother does not make her feel welcomed at her home and father does not protect her." The Department also referred to Daughter's threats to harm herself if forced to return home as well as her dislike of Stepmother. The Department explained Father was willing to have services at home, but the Department was unable to begin services because, one day after being discharged from the hospital, Daughter was rehospitalized and then placed in foster care. The Department reported Daughter was happy and stable in her foster home.
Subsequent statutory references are to the Welfare and Institutions Code.
At the detention hearing held the same day, counsel for Father argued the juvenile court should return Daughter to Father's care. Counsel indicated Father wanted to work together with Daughter and was willing to have services in place at home. The juvenile court refused to release Daughter and instead ordered her detained from Father, with monitored visits and conjoint counseling when appropriate. The court also ordered no contact between Daughter and Stepmother.
3. April 7, 2016: Jurisdiction Hearing
The jurisdiction hearing was scheduled for March 29, 2016. However, because the Department had not properly served the mother in El Salvador, the juvenile court continued the hearing to April 7, 2016. Nonetheless, at the brief March 2016 hearing, Daughter's attorney reported that Daughter was taking her prescribed medication and was feeling better. Counsel also reported both Daughter and Father were willing to participate in conjoint therapy. The juvenile court ordered conjoint therapy to begin as soon as possible.
At the April 7, 2016 hearing, counsel for Father argued the juvenile court should dismiss the petition because there was no evidence Father was unable or unwilling to care for Daughter. To the contrary, counsel argued, the evidence demonstrated Father was "perfectly capable and willing to provide care" for Daughter and indeed wanted her in his home and was doing everything he could to care for her. Counsel noted it was Daughter who refused to return to Father's home and care.
By the time of the April 2016 hearing, the Department still had not properly served the mother. But because the mother was not offending, the juvenile court continued with the hearing.
At the hearing, counsel for Daughter stated Daughter wanted to "develop," "build," and "mend" her relationship with Father. Counsel acknowledged that would take time. However, counsel stated Daughter possibly wanted to live with her maternal uncle in Texas. According to counsel, Daughter wanted to stay in the United States. Counsel also reported Daughter was happy in her foster home and was having no behavioral problems there.
In a report to the court, the Department stated that in a March 1, 2016 interview, Daughter continued to indicate she did not want to live with Father and would "use a knife to kill [her]self" if forced to return. Daughter believed Stepmother did not want her there, called her names, and made her feel bad. Daughter said she was happy in her foster placement, with no suicidal thoughts while there. Her foster mother reported the prescribed medication helped Daughter's mood.
In a later interview, Daughter told a Department social worker that despite her earlier accusations, her brother had not sexually assaulted her in El Salvador. However, Daughter maintained that, although not rape, her stepfather had sexually assaulted her in El Salvador when she was nine years old, but she never told her mother. She also stated she did not want to live with either Father or her mother, but would consider living with her maternal uncle in Texas.
The juvenile court sustained the petition as amended and found Daughter to be a person described by section 300, subdivision (b)(1). The amended petition stated: Father "is unable to provide appropriate care and supervision for the child due to the child's refusal to return to the father's home and care. The child has repeatedly threatened to harm herself if returned to the home of the father and the child's physical well-being is at risk in the home of father and step-mother . . . . On 12/19/2015 and 01/05/2016, the child was involuntarily hospitalized for threatening to harm herself. Such inability to provide appropriate parental care and supervision of the child by the father endanger[s] the child's physical health and safety and place[s] the child at risk of physical harm, damage, and danger." The juvenile court made no findings with respect to Father's fault or lack of fault.
Although section 300, subdivision (b)(1) provides additional grounds for dependency jurisdiction, when we refer to "subdivision (b)(1)" in this opinion, we are referring only to the first clause of that subdivision.
At the hearing, the juvenile court also considered Father's concern with respect to Daughter's medication. Father was not opposed to the medication, but inquired about obtaining a second opinion. The juvenile court explained that a second opinion is part of the court's procedure for approving medication for minors, and the court had already received a second opinion with respect to Daughter's medication. Father also objected to Daughter's potential placement with her maternal uncle in Texas. Father believed it would not be in Daughter's best interest to live with her maternal uncle because he would let her do as she pleased and not supervise her. The court deferred any decision on placement with the uncle until the next hearing.
4. May 16, 2016: Disposition Hearing
On May 16, 2016, the juvenile court held the disposition hearing. Counsel for Daughter indicated Daughter did not want to participate in therapy with Father at that time. However, counsel requested conjoint therapy for Father and Daughter once Daughter's therapist recommended it. In a last minute information for the court, a Department social worker reported having difficulty contacting Father. The social worker stated she most often communicated with Stepmother, who had told the social worker their family had recently moved. In addition, Father had missed one of his monitored visits with Daughter and had left another visit early. Daughter's foster mother reported that Father appeared upset with Daughter.
At the hearing, the juvenile court ordered Daughter removed from Father's custody and placed with the Department for suitable placement. The court deferred ruling on potential placement with Daughter's maternal uncle in Texas until the Department could further assess the appropriateness of that placement, including an assessment of the uncle's immigration status. The juvenile court also ordered reunification services for Father, including monitored visitation and conjoint therapy when appropriate. Again, the court made no findings with respect to Father's fault or lack of fault.
Father appealed the juvenile court's jurisdiction and disposition orders.
DISCUSSION
In our original opinion, we concluded substantial evidence supported a finding Daughter was at substantial risk of suffering serious physical harm. Our Supreme Court's decision in In re R.T. does not change that conclusion. We also concluded the evidence did not support a finding that Father was somehow unfit to parent or neglectful with respect to caring for Daughter. In re R.T. also does not change that conclusion. Finally, and in line with this division's decision in In re Precious D. (2010) 189 Cal.App.4th 1251, we concluded Daughter did not fall within any of the categories of children the dependency system seeks to protect. (See § 300.2 [purpose of dependency law is to protect "children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited" or who are at risk of such harm].) It is this conclusion that our Supreme Court's opinion in In re R.T. affects and, as a result, requires us to change our original decision.
Specifically, in In re R.T., our Supreme Court concluded the legislative history of section 300 indicates "the Legislature intended to include children like R.T. [and Daughter], i.e., those at substantial risk of serious physical harm due to no fault of the parent, within the purview of dependency jurisdiction." (In re R.T., supra, 3 Cal.5th at p. 632.) Accordingly, our Supreme Court held that, for subdivision (b)(1) jurisdiction to apply, no finding of parental fault or blameworthiness was required, thus resolving a split of authority among the Courts of Appeal on the issue and disapproving In re Precious D., supra, 189 Cal.App.4th at page 1251. (In re R.T., at p. 624.) As it did in In re R.T., the Department here filed a section 300 petition, alleging grounds for dependency jurisdiction under subdivision (b)(1), which stated not that Daughter's incorrigible behavior was the result of Father's inability to care for or protect her, but instead Father was unable to care for or protect Daughter because of her incorrigible behavior. (See In re R.T., at pp. 633, 634; id. at p. 638 (conc. opn. of Liu, J.).) In light of our Supreme Court's conclusion in In re R.T. that no finding of parental fault is required before section 300, subdivision (b)(1) jurisdiction is authorized, we conclude substantial evidence supported the juvenile court's finding of jurisdiction here. Accordingly, we affirm.
We note, however, as did Justice Liu in his concurring opinion in In re R.T., that, because "the text of the statute does not compel this result," which instead "rests to a substantial degree on an inference from legislative history," the "Legislature may wish to revisit this issue and, if appropriate amend the statute in a manner that clarifies the proper balance of competing values in difficult cases like this one." (In re R.T., supra, 3 Cal.5th at pp. 637, 638 (conc. opn. of Liu, J.).)
DISPOSITION
Our May 4, 2017 decision is vacated. The juvenile court's jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED.
LUI, J. We concur:
ROTHSCHILD, P. J.
JOHNSON, J.