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In re A.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 31, 2020
No. B297936 (Cal. Ct. App. Jan. 31, 2020)

Opinion

B297936

01-31-2020

In re A.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.B., Defendant and Appellant.

William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Shante Sylvester, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18LJJP00776B) APPEAL from an order of the Superior Court of Los Angeles County, Jessica Uzcategui, Judge. Affirmed. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Shante Sylvester, Deputy County Counsel, for Plaintiff and Respondent.

D.B. (Father) and T.G. (Mother) share two daughters—16-year-old L.B. and 15-year-old A.B.—and one son, 13-year-old S.B. (collectively, Minors). The juvenile court assumed dependency jurisdiction over Minors after Father pled no contest to allegations he physically disciplined A.B. inappropriately. The court placed Minors with Mother, and A.B. thereafter expressed fear of Father and consistently did not want to visit with him. At the disposition hearing held approximately five months after the court assumed jurisdiction, the juvenile court ordered L.B. and S.B. placed in the physical custody of both parents (who were divorced and living separately) and A.B. placed with Mother only. Father appeals the disposition order only as to A.B., and we consider whether the juvenile court erred in finding a substantial danger to A.B.'s emotional or physical well-being justified removing her from Father's custody.

I. BACKGROUND

A. The Altercation Triggering Dependency Jurisdiction

Mother and Father were divorced by the time this proceeding commenced. After their divorce, Mother and Father shared joint legal custody of Minors, and Father had primary physical custody. As a result of various custody disputes, Mother's visitation was limited to certain hours on Saturday.

In early November 2018, Minors returned to Father's home after a visit with Mother. Father and L.B. got into an argument because L.B. was not feeling well and Father thought L.B. was giving him attitude. L.B. went into the bathroom, but Father followed and demanded she give him her cellphone and headphones. L.B. gave him the cellphone, but tried to explain the headphones belonged to Mother's fiancé. Father threatened to "'whoop'" her if she did not give him the headphones, so she surrendered them. Father then told L.B. to go clean the kitchen. While in the kitchen, L.B. threw knives on the floor and started crying.

A.B. was on the phone with Mother at the time and Mother asked to speak to L.B. to see if she needed anything. After L.B. started talking to Mother, Father became angry. Father got on the phone with Mother and yelled at her. L.B. told him not to yell at Mother, Father hung up the phone, and Father told L.B. he would slap her if she did not "'shut up.'" L.B. told him to go ahead, and Father began to raise his hand. As later recounted by A.B., A.B. then stepped between Father and L.B. Father told her to get out of the way, grabbed A.B. and swung her. A.B. hit the wall behind him. She then told Father "'to chill.'" Father grabbed A.B. and threw her down. The right side of her back hit the dishwasher, and the left part of her body hit the floor. Father's girlfriend tried to pull Father away, and someone told S.B. to call the police.

L.B. and S.B.'s initial descriptions of how Father treated A.B. were substantially similar to A.B.'s. L.B. stated Father picked A.B. up and threw her, first against the wall and then onto the dishwasher. S.B. stated Father picked A.B. up and threw her behind him.

S.B. grabbed L.B.'s phone, but Father chased S.B. down the hall and took the phone. Father's girlfriend then told Minors to take a walk, at which point they left the home and called Mother. Mother picked Minors up at a nearby fast food restaurant and observed a red mark on A.B.'s upper left shoulder, called the police, and took A.B. to the hospital. Father was later arrested.

A.B. was examined by a forensic nurse. The nurse observed a bandage on A.B.'s wrist and tenderness to A.B.'s hand, but noted no other injuries.

B. The Department's Initial Investigation

After learning of the incident between Father and A.B., a Los Angeles County Department of Children and Family Services (Department) social worker interviewed the family. In addition to asking questions about this specific incident, the social worker asked Minors to describe Father's methods of discipline.

A.B. stated that when she gets into trouble or gets bad grades in school, Father "'whoop[s]'" her with a belt, on her backside and other areas of her body, over her clothes. She did not remember the last time she was "'whooped'" with a belt. A.B. stated she was not afraid of anyone at either home, but she only felt safe in Mother's home. She did not feel safe going back to Father's home because he hurt her. Both L.B. and S.B. also reported Father had hit them in the past.

The social worker spoke to Deputy Lee of the Los Angeles Sheriff's Department, who interviewed Minors after the police were called. According to Deputy Lee's report, all three Minors reported Father grabbed A.B. by her arms and threw her behind him. Deputy Lee arrested Father based on L.B. and A.B.'s statements. The detective assigned to the case told the Department the district attorney declined to file charges against Father.

Father's account of the incident matched Minors' accounts of what happened to a degree, but he characterized his treatment of A.B. differently. According to Father, when A.B. got between him and L.B. and told him not to hit L.B., Father merely moved A.B. out of the way. Father denied picking A.B. up and throwing her, stating, "'I put her behind me and she tripped over the dishwasher.'" Father also stated he called law enforcement to bring Minors back home after they left the residence. When asked about A.B.'s wrist, Father stated he did not cause the wrist injury; he said A.B. told him it was hurting earlier in the day but did not know how it happened. Regarding discipline more generally, Father reported he hit Minors with a belt but could not remember the last time he did so. Father also admitted to engaging in past domestic violence with Mother, which he claimed involved Mother hitting him and trying to get him to hit her back.

Father's girlfriend, S.W., said she witnessed part of the incident and gave an account of what happened that largely matched Father's description. She stated that when A.B. refused to move from her position in front of Father, Father picked her up and placed her behind him. A.B. stepped back, tripped over the dishwasher, and fell onto it. S.W. denied that A.B. was thrown onto the dishwasher or into the wall.

C. The Petition and Detention Hearing

In November 2018, the Department filed a nine-count dependency petition. Counts a-1, b-1, and j-1 alleged Father had physically abused A.B. by pushing her and throwing her, which caused her to fall on the dishwasher and the floor and to sustain a sprain to her wrist and redness on her shoulder and back. The petition also alleged that Father previously struck A.B. with a belt, that A.B. is afraid of Father as a result, and that Father's actions were excessive and caused A.B. unreasonable pain and suffering. The remaining petition counts alleged Father had physically abused L.B. and S.B.

The juvenile court held a detention hearing and ordered Minors detained from Father's custody and released to Mother. Following the detention hearing, Department personnel conducted additional interviews with the family.

A.B.'s account of the incident remained substantially similar to her initial statements. As pertinent here, A.B. reported Father and L.B. were arguing in the kitchen, and Father told L.B. he would slap her if she did not sit down. Father then "'raised his hand so I got in front of him. He pushed me so I got in front of him again. He grabbed me by my arms and threw me. I started crying and told [S.B.] to call the police.'" A.B. said she wanted to remain in Mother's home "'because of what happened with [Father] and because I'm scared of him.'" When asked why she was afraid of Father, A.B. said she was afraid Father was going to hit her again. A.B. maintained she did not want to live with or visit with Father, regardless of whether or not the visits were monitored.

Father's account of what happened was also similar to the one he gave previously. When describing his actions toward A.B., Father stated he "'literally scooped [A.B.] behind [him].'" According to Father, A.B. then tripped over the open dishwasher. Father again denied having hurt A.B., and stated A.B. had said her wrist hurt that morning before leaving for Mother's home.

A Department report prepared in advance of the jurisdiction hearing summarized these interviews and also reported on A.B.'s mental health. She disclosed to the Department that she had thoughts of harming herself in October 2018 (at a time when she was still residing with Father). A.B. said the thoughts were generalized and she did not actually attempt to hurt herself; she also claimed she had no then-current thoughts of self-harm.

D. The Jurisdiction Hearing

At a jurisdiction hearing in December 2018, the parties reached a resolution as to the jurisdictional issue. Father pled no contest to an amended count b-1, and the Department agreed to strike the remaining counts. As amended, count b-1 alleged Father "inappropriately physically disciplined the child, [A.B.], by lifting her, causing the child to fall on the dishwasher and the floor. On prior occasions [F]ather has inappropriately disciplined the children with objects such as a belt. The children are refusing to return to the father's care at this time. Such inappropriate physical discipline of the child [A.B.] places the child and the child's siblings, [L.B.] and [S.B.] at risk of physical harm. The court found count b-1 of the petition true, as amended, and dismissed the remaining petition counts without prejudice.

As to visitation, Father requested unmonitored visits. Minors' counsel initially did not object, but the Department and Mother did. Minors' counsel informed the court that Minors would be okay with a holiday visit but were not ready to return to Father's home. As to A.B. in particular, counsel emphasized she "was the focus of the physical stuff" and was "still very upset."

The juvenile court said it would grant an unmonitored holiday visit with Father, otherwise monitored visits until conjoint counseling was put in place, and gave the Department discretion to release Minors to Father. Minors' counsel then interjected and told the court that A.B. was "freaking out a little bit because she's not ready to go back to [Father] and conjoint counseling. And even the possibility and the discretion to return now, I think it's beyond what my client is currently capable of accepting." Minors' counsel asked the court to reconsider granting the Department discretion to release Minors to Father until conjoint counseling was already in place and the parties had returned to court. The court agreed and made that order.

At a progress hearing in January 2019, the juvenile court ordered its prior visitation orders to remain in full force and effect. Father was granted unmonitored phone visits with A.B. every other day.

A social worker spoke to A.B. after this hearing. When asked if she was willing to begin visiting with Father or speaking with him on the phone, A.B. said she wanted no contact with Father. When asked if she would be willing to participate in conjoint counseling with Father, A.B. shrugged her shoulders. Later in February, A.B. had another conversation with a social worker and reiterated she was not ready to begin visits with Father and did not know when she would be ready to begin rebuilding her relationship with him. A.B. stated she wanted to remain in Mother's home.

By March 2019, Father had begun counseling sessions. He was also attending classes through Project Fatherhood, though he had missed several sessions for various reasons. Father was engaging in monitored visitation with L.B. and S.B. Father and Minors had not begun conjoint counseling because Minors had not yet begun individual counseling and conjoint counseling would have to be recommended by their individual counselor.

E. The Disposition Hearings

The court began a disposition hearing in late March 2019. Father testified. When asked about the incident with A.B. that led to the dependency proceedings, Father said A.B. had gotten in between Father and L.B. while L.B. was screaming at Father, after Father told L.B. he would "pop" her if she did not stop. Father told A.B. to move. When she would not, Father "lifted her over to the side," and A.B. then tripped over the dishwasher door. Father described his lifting of A.B. by saying he "picked her up under her arms and lifted her up and set her down." Father said he apologized to A.B. a few weeks prior to the hearing but she still would not speak to him. As to visitation, Father confirmed he had not had any visits with A.B. since the jurisdiction hearing. Before Father finished testifying, the juvenile court recessed the hearing and continued it to May 2019.

In April 2019, Mother was hospitalized for suicidal ideation. She was released a day later with a prescription for medication to treat depression and suicidal ideation. Upon Mother's discharge, a safety plan was initiated and arrangements were made for Minors' care and supervision over the weekend while Mother's fiancé was working.

Following Mother's trip to the hospital, A.B. was taken to a hospital behavioral health center for assessment for suicidal ideation. The Department subsequently asked the juvenile court to issue a warrant authorizing Minors' removal from Mother, but the warrant request was denied. Around the same time, Department employees met with Mother and A.B. Both appeared to be in good spirits, and no concerns were noted. Suicidal assessments were completed, and Mother agreed to follow a safety plan that included following up with mental health appointments for herself and Minors.

In May 2019, the juvenile court resumed the disposition hearing as scheduled. Father's attorney asked the court to return Minors to Father, and Mother's attorney asked the court to keep Minors placed with her. Minors' counsel recommended Minors not yet be returned to Father's custody. Counsel stated A.B. was having "severe mental health issues," was not ready to be returned home, and should not be forced to have visitation or joint counseling.

The juvenile court ruled L.B. and S.B. would be returned to Father's custody, finding the Department had not met its burden of proving by clear and convincing evidence that there was a substantial danger to either of them if they were returned to Father. As to A.B., however, the court found she was differently situated. The court explained A.B. had recently been hospitalized and had consistently refused to visit with Father. The court found clear and convincing evidence that returning A.B. to Father would create a substantial danger to her emotional well-being and physical health. The court further found there were no reasonable means by which A.B.'s safety and well-being could be protected without removing her from Father's physical custody. The court accordingly ordered A.B. to remain removed from Father and released to Mother. Father was allowed monitored visitation with A.B. and the court emphasized that conjoint counseling, which had been previously ordered, "really does need to happen."

II. DISCUSSION

Substantial evidence supports the juvenile court's determination that returning A.B. to Father's custody would endanger her emotional well-being. Father's inappropriate physical discipline of A.B. (as his actions are described in the sustained petition) triggered A.B.'s persistent fear of Father, refusals to visit with him, and, the juvenile court could reasonably infer, contributed to her vulnerable emotional state and self-harming and suicidal ideation (the latter just a month before the juvenile court made its disposition order). Father also has not identified any reasonable alternatives to removal that the juvenile court should have employed, and the disposition order as to A.B. is therefore sound.

A. Legal Background

Under Welfare and Institutions Code section 361, subdivision (c)(1), a dependent child may not be removed from a parent unless the dependency court finds "[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." (Welf. & Inst. Code, § 361, subd. (c)(1).) Section 361 thus allows removal of the child from the parent's custody at the dispositional hearing where "'return of the child would create a substantial risk of detriment to the child's physical or emotional well-being' [Citations.]" (In re H.E. (2008) 169 Cal.App.4th 710, 720, italics added in original.) "'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.]" (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)

A juvenile court's child removal finding must be made by clear and convincing evidence. However, that standard "is for the edification and guidance of the trial court and [is] not a standard for appellate review." (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880 (Sheila S.), citing Crail v. Blakely (1973) 8 Cal.3d 744, 750.) We review a challenge to a removal order for substantial evidence. (In re Francisco D. (2014) 230 Cal.App.4th 73, 80.) In other words, "on appeal from a judgment required to be based upon clear and convincing evidence, 'the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.' (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 365, p. 415.)" (Sheila S., supra, at 881; accord, In re F.S. (2016) 243 Cal.App.4th 799, 811-812.)

B. Substantial Evidence Supports the Removal Order

Substantial evidence supports the juvenile court's removal of A.B. from Father's custody. Throughout the dependency proceedings, A.B. repeatedly expressed fear of Father and was consistently unwilling to return to his care or even to visit with him. This was most memorably evident during the jurisdiction hearing, when Minors' counsel revealed A.B. became very upset and began "freaking out" when it appeared A.B. might be released back into Father's care. The record also demonstrates A.B. was experiencing mental health issues at the same time the question of whether she would be returned to Father was being debated in the juvenile court—most prominent among this evidence was A.B.'s hospitalization for suicidal ideation in April 2019 just before the continued disposition hearing. A.B.'s fear of Father, coupled with her mental health challenges, constitutes substantial evidence that returning A.B. to Father posed the requisite danger to her emotional well-being. (See, e.g., In re Alvin R. (2003) 108 Cal.App.4th 962, 974-975 [evidence of minor's fear and desire not to return to his father's custody, among other things, supported finding of substantial risk of detriment].)

Because we find substantial evidence of danger to A.B.'s emotional well-being that justified the juvenile court's removal order, we do not discuss the evidence bearing on the question of physical danger from the possibility of future inappropriate discipline.

Father resists this conclusion, arguing the incident that triggered the dependency proceedings was "an accident that was unlikely to be repeated." Father emphasizes he later apologized to A.B., conceded he would have handled the situation differently in hindsight, and no longer used physical discipline with objects such as a belt as he had in the past. None of Father's arguments address or negate the core of the juvenile court's finding—that returning A.B. to Father would be detrimental to A.B.'s emotional well-being because A.B. was still afraid of Father, refused to visit Father, and was in a mentally and emotionally vulnerable state.

Drawing comparisons to In re Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.), Father also argues removal was improper because he was cooperative with the Department and participated in and benefitted from services. But Jasmine G. is inapposite for one determinative reason: the minor in Jasmine G. had no anger toward, or fear of, either parent, and testified she wanted to go back to either her mother or father's house. (Id. at 286.) We also reject Father's argument on its own terms because a parent's compliance with court-ordered programs does not prevent a juvenile court from finding detriment or automatically entitle the parent to custody of the child regardless of the substantial risk of detriment that custody would have on the child's emotional well-being. (In re Joseph B. (1996) 42 Cal.App.4th 890, 901 ["It defies common sense to conclude that a child who has become severely disturbed emotionally as an outgrowth of physical abuse administered by a parent and who will suffer further emotional trauma if compelled to return to parental custody must nonetheless be returned because the parent's successful completion of reunification services indicates further physical abuse is unlikely"].)

Finally, Father seeks reversal because, in his view, less drastic alternatives than removal were available and ignored by the juvenile court. Neither of the two alternatives Father identifies, however, was viable under the circumstances. First, Father argues that instead of declaring A.B. a dependent, the court could have allowed Father to maintain custody and ordered only informal supervision and services. This, however, is inconsistent with Father's no contest plea and the uncontested finding of dependency jurisdiction. Second, Father argues the juvenile court, having assumed jurisdiction, could have placed A.B. with Father, ordered services be provided, and monitored A.B.'s progress in Father's home. This is not reasonable alternative to removal because it would exacerbate, not alleviate, the situation. The juvenile court could reasonably infer A.B.'s fragile emotional state stemmed at least in part from the trauma of the incident with Father and her continuing fear of him. Placing her with Father—even before undergoing conjoint counseling that might facilitate such a transition—was not a reasonable alternative.

DISPOSITION

The juvenile court's disposition order as to A.B. is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J. We concur:

MOOR, J.

KIM, J.


Summaries of

In re A.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 31, 2020
No. B297936 (Cal. Ct. App. Jan. 31, 2020)
Case details for

In re A.B.

Case Details

Full title:In re A.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Jan 31, 2020

Citations

No. B297936 (Cal. Ct. App. Jan. 31, 2020)