Opinion
B297482
08-31-2020
In re J.W., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E. W., Defendant and Appellant.
Jeff Dominic Price, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristen P. Miles, Assistant County Counsel, and Peter Ferrera, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 18CCJP03258, 18CCJP03258A) APPEAL from orders of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed. Jeff Dominic Price, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristen P. Miles, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
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Father E.W. appeals orders of the juvenile court establishing jurisdiction over his daughter, J.W., terminating jurisdiction and awarding full custody of J.W. to her mother, K.P., and restraining father from contacting mother for five years. Father contends the jurisdiction and restraining orders are not supported by substantial evidence, and the reunification plan was inadequate. He further contends that the juvenile court failed to comply with Welfare and Institutions Code section 361. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
The Family
J.W., born in April 2016, is the only child of mother and father, who were no longer in a relationship or living together at the time of the events in this case. Mother has two minor children from a previous relationship, A.P. and J.P, with whom she has unmonitored visitation on weekends. Father has four children from previous relationships; three of them are adults, and father reported that he does not have contact with the minor child.
Previous Proceedings
The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in December 2016 after mother and father engaged in two domestic violence incidents in J.W.'s presence. DCFS detained J.W. from both parents and filed a petition under section 300, subdivisions (a), (b), and (j). On March 29, 2017, the juvenile court sustained allegations that the domestic violence incidents placed J.W. at risk of physical harm (§ 300, subds. (a), (b), (j)) and an allegation that father's mental and emotional problems, including diagnoses of anxiety and depression, rendered him unable to provide regular care and supervision of J.W. and placed her at risk of serious physical harm. (§ 300, subd. (b).) The juvenile court also issued a one-year restraining order protecting mother from father until March 28, 2018.
J.W. was released to mother and father on September 26, 2017. Jurisdiction was later terminated, and the family law court issued an order awarding the parents joint legal and physical custody on March 2, 2018. After the case was closed, J.W. lived with father from Monday through Thursday, and with mother from Thursday through Monday. Parents exchanged custody of J.W. at an El Monte bus station located between their far-apart Los Angeles County residences.
During the proceedings, J.W. displayed tantrums, withdrawn and aggressive behavior, and anxiety and was diagnosed with post-traumatic stress disorder. She began receiving therapy, which she continued to receive throughout the instant case.
The Current Incident and Initial Investigation
On April 7, 2018, while J.W. was in mother's care, she gained access to half-sibling A.P.'s prescribed anti-depressant medication. Mother told the medical personnel that examined J.W. that she had put J.W. down for a nap in her crib. When mother checked on J.W., she noticed tablets strewn around the crib and bits of tablet pieces in J.W.'s mouth. Mother surmised that J.W. got the tablets from A.P.'s backpack, which he had left within reach of the crib. Mother promptly sought emergency medical attention. The treating physician concluded that J.W. probably ingested some of the medication, but did not know how much. J.W. was treated and released from the hospital the following day. A follow-up appointment with a cardiologist revealed no lasting issues. Father reported the incident to the DCFS child protection hotline on April 12, 2018.
As father's counsel noted during oral argument, the medical records state that J.W. had an "[a]bnormal electrocardiogram." However, the next paragraph of the same record states the following: "I discussed our clinical, electrocardiographic, and echocardiogaphic findings with [J.W.]'s [m]other. Based on our evaluation today [J.W.]'s intracardiac anatomy and function appear normal. Her electrocardiographic findings are of little clinical consequence given her normal echocardiogram. Because of our benign findings we did not suggest further cardiology care or followup, other than on a PRN basis."
DCFS children's social worker (CSW) Richards went to father's home to investigate on April 16, 2018. According to the detention report dated May 23, 2018, father "was very agitated" and "noted several times that mother failed five drug test[s during the previous case] and was still awarded 50% custody by the department." Father "indicated that he believes that the 13-year-old [A.P.] purposely gave the baby his pills," but "did not have any motive as to why the 13-year-old [would] give the baby pills." Father further indicated that he was going to go back to family law court and explain the incident in the hope of gaining full custody of J.W., and "he is going to try and obtain some type of restraining order for [mother's older] children not to be around [J.W.] any longer."
CSW Richards visited mother's residence on April 20, 2018. Mother "indicated that she was not aware that the medication bottle was in her son's backpack." Mother also told Richards that she and A.P.'s father discussed the incident and agreed that A.P. would only bring one pill with him during future visits. Mother further advised Richards that staff at the shelter at which she resided had developed a new medication policy in the wake of the incident. Mother also noted that local law enforcement had investigated the incident and told her they were not going to press charges.
CSW Richards also met with A.P.'s father, who reported that "he feels this was just a terrible accident" and "has no concerns as it relates to his boys and that they've never said any negativity about their mother during visitation time." A.P.'s father and stepmother later described A.P. as "a very good big brother" who was "very upset" about the incident and had "never disclosed that he wanted to hit or hurt his siblings" or "acted negatively or aggressively or physically" towards them. A.P. denied giving J.W. the pills, and J.P. stated that he had been in the living room with A.P. when the incident occurred.
CSW Robinson, who worked with the family during their previous case, told Richards that mother had informed her about the pill incident, and "it sounded like she was appropriate in getting the child medical attention quickly." Robinson stated that "both parents worked very hard on their issues and court-ordered services" during the previous case, and "she had and presently has no concerns as to the baby [J.W.] in the care of either parent." Robinson also remarked that "both parent [sic] loves the child to death, but hates that the other parent is involved," and father "really does not like that court gave mother 50%" custody of J.W.
CSW Richards contacted both parents' therapists. Mother's therapist, who had been treating mother and J.W. since December 2017, reported that mother had been consistent with her treatment plan and "follows all of the agency's recommendations." She had no concerns about mother neglecting or abusing J.W. Father's therapist reported that he had been seeing father weekly since June 6, 2017. Father's therapist stated he "could not disclose the reasons behind the therapy," but noted that father had discussed the pill incident with him and believed mother and A.P. were "neglectful" for leaving the pills within J.W.'s reach. Father's therapist did not have any other information or concerns.
The record indicates father was classified as a "mentally disordered parolee" in 2014-2015 and had reported a diagnosis of "severe delusional disorder" while he was incarcerated. During a mental health exam, he disclosed diagnoses of depression and post-traumatic stress disorder.
Father Raises Further Concerns
On April 24, 2018, father went to the DCFS office and, after engaging in discussion with CSW Richards, requested to "speak to a manager with concerns about his child in the care of mother." Father told a DCFS supervisor he felt J.W. was in "imminent danger," even though she was in his custody at the time. He further stated that "he didn't feel that the court should have granted 50/50 custody because mother missed 5 tests during the course of their case," and "mother leaves the children unsupervised and he does not want his child to be left alone with [A.P.]." Richards "assured him that she went to the home to ensure that there were safety precautions in place when the child returns." Father said he was not satisfied with that and wanted J.W. to remain in his care until the investigation was complete. The supervisor told father that DCFS could not remove J.W. from mother absent immediate safety concerns, at which point father "stated that his daughter almost died and he feels that mother's 13 year old son purposely gave [J.W.] his anti-depressant medication." The supervisor asked father why he believed that, and father replied, "why wouldn't he? I didn't see this one coming. I thought he would sexually abuse her." The supervisor then asked father why he thought A.P. would sexually abuse his younger sister. Father said, "He is 13 years old. . . . I grew up in Azusa with big Mexicans and they slept with their sisters all the time. I was 13 once and I could see myself doing it."
Later that day, CSW Richards received a phone call from Donna Rosenluend, director of the social work program at the hospital that treated J.W. after the pill incident. Rosenluend advised that father had called and spoken to her for 30 minutes, during which he "vented his concerns with his daughter being at risk with the other children."
On April 30, 2018, father left a voicemail message for CSW Richards expressing concern that J.W. was going to be with mother, A.P., and J.P. during the upcoming weekend. He stated that he feared for J.W.'s life when she was around her half-siblings and wanted her "out of that situation." He further stated that "he hopes the department would hurry up with the investigation and to have full custody of his daughter, detained from mother, and allow monitored visitation to happen." When CSW Richards talked to father on the phone later that day, he reiterated his "great concern" about J.W. spending time with mother, though he acknowledged that J.W. returned from her most recent visit on time, "clean and appropriate," without any marks, and displayed normal behaviors. During another call, on May 2, 2018, father reported that he had spoken to the county Board of Supervisors about the case. Richards later confirmed this with someone who had been at the meeting.
CSW Richards visited father's home on May 2, 2018. The home was clean and orderly, and J.W. was clean and dressed appropriately for the weather. Father "shared . . . his concerns for his daughter and that he is very worried about investigation and why was it taking so long." He "added that his daughter should have been detained a long time ago." Father also stated that he had spoken to a different DCFS supervisor, who told him "he should keep the baby with him and not release her to the mother if he feels she is at risk/harm." He continued that he "knows that if the baby wasn't given to mother the police would be contacted," and remarked, "This was probably some type of set up.
On May 8, 2018, mother's attorney contacted CSW Richards to report that she had appeared in court with mother that day to oppose father's request for a restraining order preventing mother from seeing J.W. The attorney reported that the court denied the request after giving father over an hour to make his case, but continued the matter for further proceedings because father was also trying to obtain an order preventing A.P. from seeing J.W. The attorney stated that father told the court, "It will be on your conscience when something happens to my daughter," and made a similar remark to her as she was leaving the courtroom. She described father as one of the angriest men she had come across during her legal career.
Mother contacted DCFS about the hearing the same day and reached supervising CSW (SCSW) Moreno. She said that father told her, "When our daughter is dead I hope you have it in your heart to know why." Mother interpreted the statement as a threat, and stated that her lawyer had advised her to inform DCFS and local law enforcement. Moreno told mother that CSW Richards would be notified and DCFS would visit father's house.
CSW Richards spoke to the police officer who responded to mother's call about father's remarks. He reported that everything seemed fine when he went to father's house. Father was not there at the time but the officer observed that paternal grandmother (PGM), who also lived there, seemed able to care for J.W. The officer told PGM about father's statements and suggested she caution father about making statements that could be misconstrued as threats or a sign of violence.
Father called SCSW Moreno three separate times later that day. During the first call, he reported that the court had denied his request for a restraining order despite his evidence and mother's lies to the court. During the second call, he reported that the police had been to his home and "this just goes to show mother's pattern of manipulation." He stated that he did not intend his comments as a threat and that mother was manipulating what he said. Moreno noted that father "continuously wanted to refer back to previous history and how he has contacted everyone up the chain of command." Moreno "assured father that all information obtained is being followed up" to ensure that J.W.'s best interests were protected. During the third call, father told Moreno he felt "he was being looked at in a negative manner." Moreno "once again explained to father that regardless of the information reported or who was reporting it, it would be followed up on to ensure we had all the facts."
CSW Richards made an unannounced visit to father's home the following day, May 9, 2018. Father "was very antagonistic as [it] relates to CSW Richards coming for an unannounced visit" and "very defensive" when asked about the statements he made in court the previous day. He clarified that he had said "it would be '. . . On their conscience if something would happen to his daughter'" and denied using the words kill or die. Father then "proceeded to vent about the department not detaining his child" from mother and his fears that mother was neglecting J.W. He expressed concerns about A.P. molesting J.W. and "mother taking the child to a motel with a strange man using crack cocaine or some other drugs (meth) and performing prostitution in front of his daughter." "CSW Richards attempted to redirect [father] with his comments by noting that he has no evidence to support his statements," and father indicated that "all the information he has received is coming straight from the mother." Richards noted that she engaged in "constant debating type communication" with father for an hour and a half before leaving the home. Later that day, father called CSW Richards and told her he was concerned that mother has Munchausen's syndrome by proxy.
CSW Richards noted that father also stated that mother "lies all the time" and "was lying on him" about the May 8, 2018 remarks he made in court.
On May 11, 2018, another DCFS supervisor "made contact" with father when he came to the DCFS office to assert concerns about mother caring for J.W. Father complained that mother was very manipulative; the supervisor told him that DCFS does not detain children for manipulation unless it is directly affecting their safety. Father said it was, and advised DCFS to take mother's statements "with a grain of salt due to her history of 5 missed drug tests." Father suggested mother fabricated the pill incident, which he characterized as "manipulation in the highest degree." He also told the supervisor that he and mother met in a motel and had sex in J.W.'s presence in April after mother "seduce[d] him." The supervisor told father that both parents would be assessed during the investigation and that all allegations are taken seriously.
On May 14, 2018, CSW Richards contacted father's therapist, who again stated he was "only at liberty" to discuss issues relating to J.W. and could not discuss father's diagnosis, treatment plan, or medication. The therapist again stated that he had no concerns about J.W. or father's care of her.
CSW Richards also spoke to mother on the phone on May 14, 2018. Mother stated that she was in the process of requesting a restraining order against father. She repeatedly denied being with father in April and also denied ever missing drug tests. Mother informed Richards that father had been "very supportive, understanding, and very nice" immediately following the pill incident, but changed his demeanor on April 12, 2018—the day the referral was called in to DCFS—after seeing her on her phone and accusing her of having a boyfriend. At that time, mother reported, father also said he would cut off J.W.'s hair if mother ever removed her tattoo of father's name. CSW Richards later spoke to two social workers involved with the family's previous case. One stated that she did not recall mother missing any drug tests, and the other stated that she did not recall mother failing any drug tests.
Mother obtained a series of temporary restraining orders before the juvenile court issued a five-year restraining order on November 9, 2018. We address the restraining orders in the Discussion section below.
On May 15, 2018, CSW Richards received a phone call from a sheriff's deputy, who reported that father had come to her station to request a welfare check on J.W. Father stayed at the station for an hour, expressing discontent with the hospital, the police department in his city, CSW Richards, and the DCFS child protection hotline. The deputy denied father's request to file a child abuse report and advised him to "stop 'shopping'" for relief at various agencies. The deputy stated that her supervising lieutenant later took a report from father.
CSW Richards "establish[ed] verbal contact" with father later that day. He told her he "felt defeated" because mother is a pathological liar and DCFS was not doing enough to protect J.W. He also reported that he feels J.W. is in danger and should be with him, yet conceded that she "has come back from her visits with mother okay." Father again averred that mother "controls and manipulates the situation."
On May 16, 2018, mother called CSW Richards to report that father would not allow her to speak to J.W. on the phone. Richards called father, who "indicated that he is tired of being manipulated by the mother" and said, "there are no court orders that indicate the mother can call."
Later that day, CSW Richards spoke to a detective from the sheriff's department. He reported that father had come to the station and was adamant about having mother taken into custody. The detective said he listened as father discussed the pill incident, and then explained to him that "the incident sounded plausible because of the age of the child and typical mil[e]stone behavior is place [sic] everything in her mouth." Father then "started to vent about the DCFS process and how he was not happy with the investigation" or CSW Richards. The detective told father he was not going to take a report, but after father "remained in the . . . station for 4 hours," a lieutenant took a "suspicious circumstances" report from him.
On May 18, 2018, CSW Richards received a telephone call from a worker at the hospital that treated J.W. after the pill incident. She reported that father had called the previous evening "trying to obtain social worker notes" and remained on the phone with her for 30 minutes, repeatedly stating that J.W. was in "imminent danger" with mother. She advised father to contact law enforcement if the child was in imminent danger, and he responded that he had "[r]eached out to lots of people, but no one is understanding the severity of the situation." The worker said she told father she would call DCFS to relay his concerns.
On May 21, 2018, CSW Richards received a telephone call from Dr. Itchon, J.W.'s pediatrician. Dr. Itchon reported that father "keeps calling and demanding to speak to someone," and "called last Thursday (05/17/18) the WHOLE day." Father requested that Dr. Itchon make a referral to DCFS because mother did not take J.W. for her follow-up appointment within two days of the pill incident. Dr. Itchon assured father that J.W. was okay, and was not required to come back in exactly two days. Father told Dr. Itchon that J.W. was "in jeopardy" with mother and alleged that mother purposely gave her the pills.
Detention and Section 300 Petition
DCFS detained J.W. from father on May 22, 2018 and placed her with mother. Its lengthy detention report detailed the above events and opined that they placed J.W. at "Very High" risk of abuse.
DCFS also filed a section 300 petition on May 22, 2018. The petition contained three allegations under subdivision (b). Count b-1 alleged that mother placed J.W. in "a detrimental and endangering home situation" and placed her at risk of serious physical harm, damage, and danger by failing to properly secure A.P.'s medication. Count b-2 alleged that father "has a history of mental and emotional problems, including a diagnosis of anxiety and depression which renders the father unable to provide regular care and supervision of the child. In 2018, the father displayed erratic behaviors. Such mental and emotional condition on the part of the father endangers the child's physical health and safety and places the child at risk of serious physical harm, damage, and danger." Count b-3 alleged that father "placed the child in a detrimental and endangering situation in that in 2018, the mother and the father have engaged in an ongoing custody dispute, which includes the father making continuing accusations that the mother is abusing and neglecting the child. The father subjected the child to numerous unnecessary interviews with social workers, law enforcement officers, and doctors, as a result of father's allegations of abuse to the child by the mother. The detrimental and endangering situation created for the child by the father and the mother, places the child at substantial risk of suffering serious emotional damage as evidenced by severe anxiety, depression, withdrawal and aggressive behavior towards herself and others."
The matter came before the juvenile court for a detention hearing on May 23 and 24, 2018. The juvenile court admitted the detention report into evidence, as well as a temporary restraining order mother had obtained against father, letters from father's therapist, and a report father had lodged at the sheriff's station. Father testified that he "came here today to show that I'm stable and I'm okay, and I love my daughter very much." He also stated that he wanted J.W. returned to his care, and described for the court his concerns about J.W.'s safety and his efforts to relay those concerns to various authorities and keep J.W. safe.
The court found that DCFS had made a prima facie showing that J.W. was a person described by section 300, subdivision (b). It further found, however, that "there are services available to safely maintain the child in each parent's home," and ordered her released to both parents over DCFS's objection. "[T]he only person I'm seeing here who's making unreasonable claims is the mother" viewing the May 8, 2018 statements as a threat. "It seems to me that DCFS and the mother are the ones who are causing - - who are creating a protracted custody dispute." "So far, the only person who's been shown to do anything that placed this child at harm is the mother and her lack of adequate supervision. [¶] And if the father really is relapsing on the delusional symptoms that he indicates he had years ago, I'm not seeing anything that [ ]rises to the level of psychiatric delusions." The court set the adjudication and disposition hearing for July 18, 2018 and denied DCFS's request for a stay of the order returning J.W. to father's care. The court also issued an order taking jurisdiction over all matters involving the parents, including the restraining order. (See § 304.)
Jurisdiction/Disposition Report
DCFS filed a jurisdiction/disposition report on June 29, 2018. Dependency Investigator and CSW Claudia Jordan reported that she visited mother and J.W. on June 26, 2018. With regard to the b-1 count concerning the pill incident, mother told Jordan that she did not know the pills were in A.P.'s backpack and believed she responded to the situation appropriately by advising the staff at her shelter and taking J.W. to the hospital. She denied that A.P. or J.P. went into the room where J.W. had been napping and said she was upset that father suggested they purposely hurt their sister. With respect to count b-2 concerning father's mental illness, mother stated that father had been diagnosed with a mental illness while incarcerated. She stated that he "has really bad mood swings" that render him unpredictable and had abused her in the past; she believed J.W. was scared of him. Mother further stated that she believed father's mental health was affecting J.W: "He is subjecting her to all of this. He calls the sheriffs often, when she comes to me. He has them come and check on her because he says she is not safe here. . . . It's a waste of resources. He is just using our daughter. He knows I don't abuse my children. He is just trying to seek control over us."
Mother made similar comments with respect to count b-3 concerning father's continuing accusations of abuse. She stated that she and father initially had "communicat[ed] well" after the incident, but father "became upset when we exchanged [J.W.] that Monday and he thought I was talking to a male on the phone. I told him that my personal life is none of his business and that is what set him off. That triggered all of this to happen." Mother reiterated her belief that the whole situation was negatively affecting J.W.
Jordan visited J.W., father, and PGM on June 27, 2018. Jordan asked father if he was enrolled in any services, and he stated that he attended Alcoholics Anonymous meetings, where he sponsors others, and sees his therapist once a week. Father stated that he had been diagnosed with anxiety and depression and had begun taking medication to treat those conditions about three or four months earlier. With respect to count b-1, father told Jordan that mother was neglectful and he had "evidence . . . that she deliberately created this situation." He asserted, "Mother suffers from you know that disease where you make your kids sick. The evidence shows that [J.W.] didn't even have any medication in her system, so the mother subjected her to all these exams for nothing because she didn't take any medication. Even the people at [mother's shelter] didn't believe that [J.W.] needed to go to the hospital . . . . The fact that it took her an hour proves that there was nothing really wrong with her and that the mother was lying about her taking the pills. After she was released from the hospital she failed to tell me that [J.W.] needed a follow-up appointment. It took her 6 days to take her for her follow-up appointment. That is medical neglect on her behalf. She didn't take her until she got her back at the end of the week." Father suggested that mother, A.P., or J.P. gave J.W. the pills to "frame the other father and get full custody of them." Father also accused mother of lying and told Jordan about mother's alleged missed drug tests.
With respect to the b-2 count concerning his mental health, father stated, "The only thing that I have done is be concerned for my daughter. It says in the petition that I have a [sic] erratic behavior because I went to the office and was concerned for my daughter. I was making accusations of the 13-year-old sexually abusing my daughter I didn't actually accuse him I said I had concerns. Then if you look at the report you can see there's past investigations for the seven-year-old trying to molest a two-year-old." PGM told Johnson that father "had anxiety and was suicidal but is doing a lot better. He goes to his therapist every week. He goes to AA and he is really working on himself. He loves his daughter and is just over protective."
The detention report noted that in 2014, when J.P. was four, he "had been acting out in a sexual manner." DCFS investigated and deemed allegations of sexual abuse unfounded.
With respect to the b-3 count concerning his repeated allegations of abuse and neglect by mother, father stated, "They've turned it on me. All I am is a concerned father. I want to keep my daughter safe. Mother [sic] just making unreasonable claims. It's not mature. I have no animosity toward the mother. My daughter almost died in the mother's care and that is my concern. . . . There is no custody dispute. I just have concerns for my daughter. Yes, I say I want full custody because the mother shows that she's not willing to change. She is who is retaliating against me I just have concerns for my daughter. There is no intention of keeping [J.W.] from her she is her mother. I would like to encourage the relationship as long as it is safe. I'm not lying I'm just trying to protect my daughter." He also asserted that mother is a "pathological liar" and suggested a therapist should explore whether she suffers from Munchausen's syndrome.
DCFS concluded that there were no safety issues for J.W. in either parent's home. DCFS noted, however, that "[i]t appears that regardless of the Departments [sic] findings as to reputedly safety concerns for the child the parents will continue to feel their child is not safe. Both parents want full custody of the child." DCFS opined that the "constant custody dispute" posed the greatest risk for J.W. and accordingly recommended the juvenile court sustain count b-3. It further recommended that both parents continue with the services they were already receiving.
The court received the report on July 2, 2018 and ordered DCFS to prepare a "Pre Detention Investigation" for the July 18, 2018 hearing. DCFS filed the requested report on July 18, 2018; it was almost entirely duplicative of the detention and jurisdiction/disposition reports.
First Amended Section 300 Petition
On July 17, 2018, DCFS filed a first amended section 300 petition. The first amended petition repeated counts b-1, b-2, and b-3 from the original petition, and added count c-1, under subdivision (c). Count c-1 duplicated count b-3. DCFS dismissed the original section 300 petition without prejudice during a brief hearing on July 18, 2018. After the hearing, which was continued to August 24, 2018 and later continued again to October 23, 2018, the court at father's request ordered DCFS "to assist parents enroll minor in play therapy that each parent can participate in, preferably through Prototypes," a service provider near father's residence. August 24 , 2018 LMIs
DCFS filed two last-minute informations (LMIs) on August 24, 2018. The first LMI stated that a new CSW, Morgan, had been assigned to the case. When she called father on August 9, 2018 to introduce herself and discuss a new arrangement under which a DCFS human services aide (HSA) would transport J.W. to and from the custody exchange point in El Monte, father had become "very agitated and upset." Morgan explained to father that she had visited mother, "saw a need, and offered to assist mother with transportation" for J.W.'s visits to father "by offering an HSA worker." Father "began to speak loudly and rant about the department being unfair and catering to the mother," and stated that it was "unsafe for someone to transport his child and put [her] mental and emotional health at risk." Morgan told father that HSAs are DCFS employees who are background-checked, receive training, and transport children frequently. Father "continued to express his dismay and discontentment." Morgan listened to father and offered him various solutions and strategies "as he spent more than one hour complaining." Eventually, father "appeared to calm down and stated that CSW is right and thanked CSW for these strategies." He then said he wanted J.W. to resume therapy at Prototypes. Morgan told father she would contact J.W.'s current therapist (whose office was near mother's shelter) and get back to him.
Morgan contacted J.W.'s therapist on August 13, 2018. The therapist stated that her facility would be unable to continue providing services if J.W. returned to Prototypes, and further stated that she "hugely recommends that the current services that [J.W.] is receiving not be terminated at this time due to the tremendous work that they are doing and the goals that they have set for [J.W.]." J.W.'s former therapist at Prototypes also told Morgan that she could not provide services to J.W. while J.W. was receiving similar services elsewhere, and "for both of the parents to receive services, that the current services . . . would need to be terminated and the family will need to be referred to another agency that is located at a midpoint between the parents." Morgan relayed this information to father, who was "not happy" about it and demanded that J.W. be transferred to Prototypes "'to be fair' because it is 'his turn now.'"
Father called Morgan on August 13, 2018 to inform her that he "appreciates the HSA worker." Father also stated mother was being "manipulative" by allowing her cell phone service to lapse; Morgan "allowed [father] to vent and express his feelings." He then began to speak about mother's alleged lack of concern for J.W., and told Morgan that "he has made it his duty to speak with several medical professionals and specialists in order to ensure that [J.W.]'s needs are being met." According to father, mother had complained to PGM that father was taking J.W. to "unnecessary appointments." Morgan advised father that she would document his concerns.
At the conclusion of the LMI, Morgan reported that "father has recently been on the phone with the current CSW for hours complaining about anything and everything that he can possibly think of while child, [J.W.] is in his home and is exposed to his yelling and complaining. The father has been invited in the past to participate in therapy with [J.W.] with her current therapist but has not yet attended. . . . The father always finds something to complain about in attempt to control the situation." She added that DCFS "is recommending a[n Evidence Code] 730 evaluation in order to determine the best services to be provided to the father."
The second LMI dated August 24, 2018 detailed contacts father recently had with SCSW Duarte. On August 9, 2018, father called to tell Duarte he was upset that HSA arrangements had been made without his input. Duarte apologized and told father the arrangements had been made to assist both parents.
Father called Duarte again on August 14, 2018. He reported frustration that mother "forgot to pay her cell phone bill" and was continuing to manipulate everyone. He also stated that he had evidence showing that mother had lied under oath and planned to present it in court. Father stated that mother's credibility issues posed a safety concern for J.W. Father called Duarte on August 16, 2018 to let her know that he was trying to work with CSW Morgan.
Duarte received an email from J.W.'s current therapist on August 22, 2018 stating that J.W. would be able to receive services both there and at Prototypes due to the restraining order between the parents. The therapist requested that DCFS coordinate the services.
Interim Review Report
DCFS filed an interim review report on October 22, 2018. It stated that "from 10/04/2018 to date, the father . . . has contacted staff at the Child Protection Hotline (CPHL), DCFS CS-CSW, CS-SCSW, [and two DCFS supervisors]. [Father] has continued to express his concerns regarding the 'imminent danger' that the child [J.W.] is in 'every minute that she is with her mother,' the mother's history of lying, his new evidence that he has that will prove the mother is lying to DCFS and Investigators, and his reasons why the child should be removed from the care of her mother. . . ." When he called the child protection hotline, father complained about mother's alleged failed drug tests. When he called the SCSW, he complained about the delay in getting J.W. enrolled in services at Prototypes. CSW Morgan later contacted father to advise him that the liaison in the DCFS office believed it would not be possible for J.W. to receive duplicative services from two providers but that she had put in a call to Prototypes and was waiting for a reply. Morgan also told father she would speak to mother about terminating J.W.'s current therapy against her therapist's and Morgan's recommendation. When she did, mother "became very emotional and began to cry," and said she was frustrated with father trying to control everything.
Father later called Morgan to tell her he had obtained video footage from a hotel that proved mother lied about being there with him. Father added that he had called law enforcement as well as the child protection hotline to report his concerns and tell them about the video. Father called SCSW Duarte on October 9, 2018 to tell her about the video and accuse mother of engaging in prostitution in J.W.'s presence. Father reiterated that he was concerned about J.W.'s safety "every minute that she is with the mother" and requested that DCFS "take her out of that situation until the mother gets herself together."
Father called Morgan and Duarte at least two more times on October 9, 2018. He yelled at Morgan and asked why J.W. had not been detained. Morgan reminded father that lying is not a reason to detain a child. Father then asserted that mother's son is a "predator" who could be abusing his daughter, and that mother could be lying about other things, including prostitution. Father accused Morgan of "using my daughter against me," and claimed that J.W. "could die" next time she was with mother. Duarte and another supervisor had a 45-minute phone conversation with father on October 10, 2018, during which he reiterated his allegations of mother's untruthfulness. He also claimed J.W. was in imminent danger; the supervisor reminded him that J.W. was currently in father's care.
Father left three voicemails for Morgan on October 10, 2018. In the first, he stated that J.W. was in imminent danger because she was scheduled to return to mother the following day. He implored Morgan to ask mother about the various events he claimed she was lying about, "[b]ecause if the mother does not tell the truth then . . . [s]he could be prostituting herself out at night, doing drugs and doing many different things that could be putting my daughter in harm's way." In the second message, father stated that he had always treated Morgan "very respectfully" and only ever raised his voice out of concern for J.W. In the third message, he stated that he wanted to review an LMI with Morgan "to point out all the different discrepancies and how those reports were taken out of context."
Father called Duarte and came to the DCFS office on October 11, 2018. On October 15, 2018, he called Morgan three times because the HSA was late when transporting J.W. Mother later called to report that J.W. had been "withdrawn" and "angrier than usual" after returning from her time with father. Mother also advised that J.W. was having nightmares during which she yelled, "no no stop." Mother reported that she was "extremely worried" about J.W.'s safety.
The interim report also provided an update on the Prototypes therapy issue. "It appears that Prototypes does not currently appear to offer the service that [father] is requesting (Play Therapy) and the therapist that he was previously assigned to is no longer with the agency. It does not appear that initiating new services with a new agency and a new therapist is a healthy transition for the child based on the assessment from the therapist and particularly with the most recent report of the child's current trauma-related behaviors." Prototypes also reported that father had been calling them directly, and they had told him that they could not see J.W. while she was still receiving services with her current therapist. Protoytypes further reported that father "has the option to join in with the Therapy that [J.W.] is getting with [her current agency]."
J.W.'s current therapist contacted Morgan on October 15, 2018 to express concern about J.W.'s nightmares and behavior after seeing father. The therapist stated that she did not have any concerns about mother, but was "concerned with the father's allegations against the mother, especially as he appears to be 'perceiving a sort of threat and acting as if there is a present danger to his daughter, when there is none.'"
DCFS referred the court to the jurisdiction/disposition report for its recommendation, which had been to sustain count b-3. October 23 , 2018 LMIs
DCFS filed two LMIs on October 23, 2018. The first referred the court to an October 19, 2018 letter from J.W.'s current therapist. In that letter, the therapist summarized J.W.'s treatment and progress, and stated that J.W. began experiencing regressive behavior in June 2018 that became more significant in October 2018. "The therapist observed this change in the client's mood, decreased appetite, increased clinging behaviors, difficulty engaging in play activities that the client typically enjoys during the therapy sessions on 10/12/18 and 10/19/18." The therapist recommended that J.W. continue with her current therapy, "as she continues to present with some trauma specific symptoms during her transitions to/from visitation with her biological father."
In the second LMI, DCFS advised the court that father had come to the DCFS office on October 19, 2018 with documents he wanted to present to the court. Those documents, which DCFS attached, included a Health and Human Services Agency complaint in which father alleged discrimination by DCFS. October 23 , 2018 Hearing
At the hearing on October 23, 2018, the juvenile court granted father's Marsden motion to relieve his counsel and continued the adjudication hearing to November 9, 2018 to give new counsel time to prepare. The court also ordered DCFS to prepare a second pre-detention report for both parents.
People v. Marsden (1970) 2 Cal.3d 118.
Pre-Detention Report
DCFS filed the requested pre-detention report on November 9, 2018. It included the following.
On October 26, 2018, father came to the DCFS office and met with a supervisor for over an hour. According to the supervisor, father "seemed fixated on retaliating against the child's mother and wanting to [sic] Department to remove his daughter from mother's custody."
On November 8, 2018, father called to complain that CSW Morgan was "incompetent and insensitive to his needs and biased toward the mother." He also accused DCFS of "preparing a 20-page report that was biased and did not show him in a good light."
The report noted that "During the month of October to present 11/8/18, the father . . . has made approximately 11 calls to the child protection hotline reporting concerns of his child . . and/or expressing frustration with the Department, and the court system." The report summarized the calls, during which father complained about mother's lies and the delays in the case, asserted J.W. was in imminent danger, and requested that the comments J.W. made in her sleep, "no no stop," be investigated as possible sexual or physical abuse.
The report further stated that a Dependency Investigator CSW spoke to father's therapist on November 8, 2018. The therapist stated that father's "general goal is to help him improve positive coping skills and decrease unwanted symptoms." He further stated that he had provided father a progress letter on October 22, 2018 stating that "he is progressing toward his coping skills." The therapist added that father "has been more stressed and more on edge" during the past two months, and that can make his symptoms "more prominent."
DCFS concluded that father's "mental health appears to be declining" and that his behaviors "appear irrational, obsessive, and to some degree paranoid." DCFS expressed concern that father's "declining mental health condition . . .will impact the emotional and physical health of" J.W., who was present during some of his calls to DCFS. DCFS recommended that the juvenile court detain J.W. from father's custody and order a mental health evaluation for him under Evidence Code section 730. November 9 , 2018 Hearing
At the November 9, 2018 hearing, the court noted that DCFS had requested detention from father but had not filed a section 385 petition to change the current placement order. The court then made its own section 385 motion and asked counsel to argue whether detention from father was warranted. Because the court day ended before they could do so, the court made "the one required finding today that remaining in the home of the father is contrary to the child's welfare" and detained J.W. pending a continued hearing on November 13, 2018. The court also ordered monitored visitation for father at the DCFS office.
Section 385 provides, "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article."
Section 385 Petition
On November 13, 2018, DCFS filed a section 385 petition requesting that the court reconsider its May 24, 2018 placement order and detain J.W. from father. The petition noted DCFS's previous concerns and added that father had called the child protection hotline four more times since the November 9, 2018 hearing. Each time, he alleged that J.W. was not safe with mother and was at risk of sexual abuse by her older siblings. On November 12, 2018, the hotline generated a referral alleging sexual abuse and cross reported it to the sheriff's department. DCFS observed that in light of the new investigations required by the referral, J.W., her siblings, and mother would have to be interviewed by social workers and law enforcement. November 13 , 2018 Hearing
At the November 13, 2018 hearing, the court admitted into evidence the November 9, 2018 pre-detention report and the section 385 petition. It also admitted father's exhibits, two letters from his therapist, dated October 22, 2018 and November 8, 2018, the latter of which opined that father was "managing his mood and re-occurring stressors with skillfulness and appropriateness." Father testified that he was concerned about J.W.'s safety and had "continued to do what I can as a father to try to keep her safe." He acknowledged that he had called the child protection hotline 18 times since October 23, 2018 but claimed he had acted out of concern for J.W. Father testified that he "absolutely" would stop calling the hotline now that a new referral had been generated.
After hearing argument from counsel, the court found that DCFS made a prima facie showing that "substantial danger exists to the child's physical and/or mental health in the care of the father. Remaining in the home of the father is contrary to her welfare. The Department has provided reasonable services to prevent removal, and no available services exist to prevent further detention." The court ordered J.W. detained from father and released to mother. It further ordered DCFS to continue to provide mother with family maintenance services and father with visitation at the DCFS office at least twice per week, "monitored by a C.S.W. or higher." November 28 , 2018 LMI and Evidence Code section 730 Order
On November 28, 2018, DCFS filed an LMI apprising the court that father's two monitored visits with J.W. had gone well. The LMI also documented five lengthy voicemails father left for CSW Morgan on October 23 and November 8. Father called SCSW Duarte on November 16, 2018 and accused her of kidnapping J.W. from a loving home and placing her with a sociopath. He also said he had gone to the FBI and the sheriff's department. During another November 16, 2018 call, father refused further visits with J.W. because he believed she was traumatized by getting "passed from Social Worker to Social Worker for monitored visits." The following day, father called to say he had changed his mind about the visits. He had a third monitored visit on November 19, 2018 that went well. On November 20, 2018, he called Duarte to complain that J.W. had been four minutes late for the visit and to allege that mother "meets 13 out of the 16 traits" for psychopathy.
On November 21, 2018, father called the child protection hotline stating that he was concerned for J.W.'s life and asserting "corruption at the Highest level of DCFS." On November 26 and 27, he left multiple voicemails for CSW Morgan. Father requested an HSA to transport J.W. to a DCFS office closer to his home for her visits; DCFS advised that the HSA could not be used due to the court order that a staff member with rank CSW or higher supervise the visits. Father complained DCFS was discriminating against him.
DCFS reported that J.W.'s therapist was amenable to incorporating father into her sessions with J.W., but wanted to do so in her Torrance office. The therapist also requested that a planning meeting be held with father and other providers before services were initiated. Father had resisted DCFS's efforts to schedule such a meeting, advising Morgan he did not want to schedule the meeting "until he began services with Prototypes."
On November 28, 2018, presumably upon receipt of the LMI, the court ordered a mental health evaluation of father pursuant to Evidence Code section 730. The court set a hearing for January 11, 2019 to receive the evaluation, and set the adjudication hearing for January 22, 2019. January 11 , 2019 Ex Parte Application
On January 11, 2019, DCFS filed an ex parte application to request suspension of father's visits. The application stated that father refused to return J.W. to CSW Morgan at the conclusion of his December 6, 2018 visit. He "insisted that he be able to put the child into the car even after he was told that the CSW would be taking the child to the back of the office while she got her belongings." Father demanded to speak to a supervisor because "he felt that it was his right to place the child in the car and strap her in to her car seat." Morgan eventually agreed to let father put J.W. in the car; "[o]nly then did [father] agree to put the child down."
DCFS reported that father continued to demand to place J.W. in the car seat and repeatedly stated that the social workers were "emotionally abusing the child by exposing her to Social Workers and transporting her to the office." DCFS stated that father's demands were "of serious concern," and CSW Morgan "was fearful of [father's] behaviors and it was unknown what he would do." DCFS further noted that father had "created a scene in the lobby which the child was present for."
On December 19, 2018, father refused to come to any more visits unless mother transported J.W. to the visits to avoid exposing J.W. to the alleged emotional trauma of the social workers. SCSW Duarte told father that was not possible but DCFS was happy to facilitate the visits so that he could see J.W. Father later repeated his demands on December 21, 2018 and December 26, 2018. He refused further visits with J.W.
Evidence Code Section 730 Report
In a report dated January 7, 2019, Sara M. Hough, Psy.D., reported that she evaluated father on December 31, 2018 for approximately 2 hours and 45 minutes. She observed that father exhibited "delusional, tangential, and circumstantial thinking" and continued to "express significant concerns about [J.W.]'s safety." Dr. Hough further opined that father's "thought content was delusional in nature with themes of paranoia," he "lacks insight into the pathology of his thinking," and "takes no responsibility for his behavior leading to the current situation." She concluded that father "meets criteria for a clinical diagnosis of Delusional Disorder, Persecutory type." She stated that delusional disorder "is one of the most difficult to treat," though "a person can improve but it will require mental health intervention in the form of therapy with an experienced therapist and psychiatric medication." Dr. Hough opined that father's "mental instability and limited insight" rendered him incapable "of safely caring for minor and all visits should be with appropriate supervision." She recommended that father receive individual therapy, with progress notes provided to the court; psychiatric intervention; parenting class; and monitored visitation "in a therapeutic milieu" "if possible."
The court received the report on January 11, 2019. After hearing argument from counsel, it granted DCFS's section 385 petition to suspend visitation "in part." The court explained, "Even though in some formats, the visits with the father would be detrimental, I believe there are ways to make arrangements. So the 385 is granted in part. [¶] The father's visits are to be in a therapeutic setting with a licensed therapist at least weekly. The Department is to arrange for the child to arrive before the father and leave after the father. [¶] The Department is to explore funding through DCFS, either parent's insurance, Medi-Cal, and/or paid for by the father."
Amended Petition and Adjudication Hearing
On January 22, 2019, DCFS filed an amended section 300 petition dismissing counts b-1, b-2, and b-3. It amended the sole remaining count, c-1, to remove allegations about parents' custody dispute: "The child, [J.W.]'s father, . . . , makes continued accusations that the mother is neglecting the child. The child has been subjected to unnecessary interviews with social workers, law enforcement officers, and doctors, as a result of father's allegations. The situation created for the child by the father, places the child at substantial risk of suffering serious emotional damage as evidenced by severe anxiety, depression, withdrawal, and aggressive behavior toward herself and others."
At the hearing the same day, the trial court admitted all of DCFS's exhibits, incorporated testimony from previous hearings, and took judicial notice of the file in the family's prior case. Father called several witnesses to testify, including himself and mother. Mother testified that she believed J.W.'s behaviors were due to "going back and forth" between her home and father's, and that J.W. had been doing well lately in her exclusive care. She also testified that she did not believe that A.P. or J.P. had ever behaved inappropriately toward J.W. Later, in response to questioning by the court, mother testified that she believed father was "using [J.W.] as a pawn to hurt me."
CSW Morgan testified that she did not know how many interviews J.W. had been subjected to because she had not been on the case the whole time, but she had interviewed J.W. and knew J.W. had "several doctors' appointments" at father's behest. Morgan attributed J.W.'s stress to being transported for visitation and reluctance to visit father. Dependency investigator Yanez testified that jurisdiction was warranted under section 300, subdivision (c) because father's persistent paranoid thoughts and lack of rational thinking were harmful to J.W. PGM testified that J.W. exhibited negative behaviors around social workers; she had never seen J.W. express behaviors of fear or apprehension around father. She also stated that she had never seen father exhibit concerning behaviors around J.W.
Father testified about his love for J.W. and his belief that she was in imminent danger due to mother's inability to make responsible decisions and protect her. He claimed that mother displayed 13 of the 16 characteristics of a psychopath, and said he had called a DCFS supervisor to report that. He stated that the only times J.W. experienced severe emotional distress was around DCFS social workers and in connection with the pill incident. He also explained that he had stopped visiting J.W. to avoid putting her through further traumatic experiences.
After hearing arguments from counsel—all of whom except father's supported sustaining the amended petition—the court found that count c-1 "is true as it's been amended as to the father and stricken as to the mother. The child is a person described by Welfare and Institutions Code section 300 (c)." The court then admitted the Evidence Code section 730 report for consideration at disposition, and heard arguments regarding that issue.
Father's counsel requested reunification services for father, specifically to continue in counseling with his therapist and be given an opportunity to work on the areas of concern in the Evidence Code section 730 report. She further requested that the court keep the case open, and that if it were inclined to close the case, it "not order that the visits be in a therapeutic setting only or not allowing visits."
The court found "by clear and convincing evidence remaining in the home of the father would pose substantial danger and risk of detriment to the child's physical health, safety, protection, or physical or emotional well-being. The Department has provided reasonable services to prevent removal, and no available services exist to prevent further detention. [¶] She is declared a dependent child of the court under Welfare and Institutions Code section 300 (c). Care, custody and control is taken from the father. She is placed home of mother. ... Jurisdiction is terminated with a custody order granting the mother legal and physical custody. The father's visits are monitored in a therapeutic setting at least one hour per week. That's monitored by a mutually agreed upon therapist who has reviewed the 730 evaluation. [¶] The custody order should reflect in the other orders section that the child is to continue in counseling. The JV-206 will reflect that the father's visits are monitored because he has not made substantial progress in individual counseling with a licensed therapist and psychiatric care. [¶] That's individual counseling with a licensed therapist and psychiatric care with service providers who have reviewed the 730 evaluation. And . . . the JV-206 should also indicate that - individual therapy with a licensed therapist, psychiatric care, and following any recommendations." The court set a hearing for January 28, 2019 to receive the custody order, modify the restraining order, and terminate jurisdiction.
On January 28, 2019, the court modified the restraining order to allow parents to communicate about J.W.'s therapeutic visitation via "My Family Wizard." The court attached the restraining order (protecting mother against father for five years) to the custody order, which it signed. It terminated jurisdiction and lifted the stay on other courts hearing the matter.
Father timely appealed on March 25, 2019.
DISCUSSION
I. Substantial evidence supports the jurisdictional finding.
Father first argues that substantial evidence does not support the court's finding that J.W. is a person described under section 300, subdivision (c). He asserts there was no evidence that J.W. "suffered any severe anxiety, depression, withdrawal or aggressive behavior stemming from Father's actions," his conduct "was not abusive," and any stress J.W. experienced while being transported was due to mother "shirk[ing] her responsibility to transport her 2 year-old child to visits and instead subject[ing] her to being transported by strangers." We reject these contentions.
Section 300, subdivision (c) permits the assertion of jurisdiction where a 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. . . ." To sustain a jurisdictional finding under this provision, DFCS must prove "(1) the offending parental conduct; (2) causation; and (3) serious emotional harm or the risk thereof, as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior." (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.) We review the juvenile court's finding that DCFS met its burden for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) Substantial evidence need not be uncontradicted. (See ibid.) We view the record in the light most favorable to the juvenile court's determinations, and make all reasonable inferences to support its findings. We do not revisit credibility determinations. (Ibid.)
Substantial evidence supports the juvenile court's jurisdictional finding. It was undisputed that J.W. began exhibiting behaviors requiring mental health treatment during the previous case. The court was presented with evidence from J.W.'s therapist that J.W. had made "significant progress" but recently suffered from additional mood changes, decreased appetite, increased clinginess, and decreased interest in activities she previously enjoyed as the instant case progressed. The therapist attributed these changes to J.W.'s "transitions to/from visitation with her biological father." Although the therapist did not use the statutory language "severe anxiety, depression, withdrawal or aggressive behavior," it is reasonable to infer that such conditions may manifest in a child J.W.'s age as clinginess, decreased interest in activities, and decreased appetite. The record also contained evidence that J.W. experienced nightmares, from which the court reasonably could infer that she suffered from anxiety or depression. The therapist linked these behaviors to J.W.'s time with father, as did mother and CSW Morgan.
Father contends his conduct was not "abusive," because he did not mistreat, injure, wrong, or hurt J.W. We disagree. Courts have long recognized that a parent's repeated, unsubstantiated allegations of abuse can be sufficient to warrant jurisdiction under section 300, subdivision (c). (See, e.g., In re Christopher C. (2010) 182 Cal.App.4th 73, 84-85; In re Matthew S. (1991) 41 Cal.App.4th 1311, 1314, 1320.) In re Matthew S. is particularly instructive. There, the mother believed her son's genitals had been mutilated despite a complete lack of evidence to that effect. (In re Matthew S., supra, 41 Cal.App.4th at p. 1314.) The juvenile court found jurisdiction under section 300, subdivision (c), and the appellate court affirmed. It explained that mother "brings a foreboding sense of dread, danger, and catastrophe to the lives of her children. Although Matthew S. so far has been able to deal with his mother's delusions, he is confused by them. . . . Matthew S. is forced to shoulder a tremendous burden." (Id. at p. 1320.)
Substantial evidence showed that J.W. bore a similar burden here. Father made many of his lengthy "rants" to DCFS and other entities while she was in his care, "created a scene" during his monitored visitation by insisting upon placing J.W. in her car seat, "made it his duty" to take J.W. to numerous medical appointments and repeatedly called her medical providers despite a lack of evidence she was harmed during the pill incident or otherwise when she was in mother's care, and exposed her to additional investigations by insisting that the child protection hotline initiate an investigation of alleged sexual abuse. Though J.W. did not verbally express confusion, she exhibited regressive behaviors as father's allegations and behaviors escalated.
Father claims that Morgan's testimony at the adjudication hearing "acquits" him, because Morgan "had 'no idea' how many interviews the child had been subjected to" and "was not qualified as an expert in medicine." Morgan's testimony is not a matter for this court to reweigh on appeal. The record contained ample other evidence from which the court reasonably could conclude that father's actions subjected J.W. to unnecessary intervention and generally placed her at risk of emotional harm.
Father finally contends that any stress J.W. experienced while being transported was due to mother "shirk[ing] her responsibility to transport her 2 year-old child to visits and instead subject[ing] her to being transported by strangers." We are not persuaded. Father's erratic and escalating behavior prompted the court to require that his visits be monitored by CSWs and, as discussed below, supported the issuance of a restraining order preventing contact between parents when exchanging custody of J.W. Father also refused to allow the CSWs to transition J.W. to their cars after his visits, which escalated tensions among all involved in the visits. II. It is not reasonably probable that the court would have found removal unnecessary.
Father contends the juvenile court erred by failing to make required factual findings under section 361 before removing J.W. from his custody. He further contends it is reasonably probable that the court would not have removed J.W. if it had made the findings and considered the reasonable alternative of removing him from the home.
"At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical health without removing the child." (In re D.B. (2018) 26 Cal.App.5th 320, 328; see § 361, subd. (c)(1).) The juvenile court is statutorily required to determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).) It also must consider, "as a reasonable means to protect the minor. . . . [¶] (A) The option of removing an offending parent . . . from the home." (§ 361, subd. (c)(1).)
We agree with father that the court's factual findings were deficient. It did not state any facts in support of removal or make any findings concerning reasonable means of preventing removal before removing J.W. from father's custody. The court's incorporation of Dependency Court Order 415 into its minute order "is not a replacement for a statement of the facts supporting the court's decision to remove a child from a parent's custody." (In re D.P. (2020) 44 Cal.App.5th 1058, 1067.)
However, "cases involving a court's obligation to make findings regarding a minor's change of custody or commitment have held that the failure to do so will be deemed harmless where 'it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.'" (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) As explained in In re D.P., supra, 44 Cal.App.5th at p. 1068, this is because a removal order "is subject to the constitutional mandate that no judgment shall be set aside 'unless, after an examination of the entire cause, including the evidence, the [appellate] court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.'" "Under this mandate a 'miscarriage of justice' will be declared only when the appellate court, after examining the entire case, is of the opinion that '"it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."'" (Ibid.) "Reasonable probability" means merely a reasonable chance that is more than an abstract possibility; it does not mean more likely than not. (Ibid.)
Based on our review of the entire record, we conclude it is not reasonably probable that the court would have found that J.W. could safely be returned home. Even when J.W. was in father's physical custody, he continued to call the child protection hotline, call and visit DCFS, and visit law enforcement and other entities to allege that she was in "imminent danger." Returning J.W. to his home accordingly would be likely to place her in substantial danger of the emotional trauma engendered by the continual "foreboding sense of dread, danger, and catastrophe" father's baseless allegations of abuse created. It also is not reasonably probable that removing father from the home would protect J.W. Unlike the family in In re D.P., supra, 44 Cal.App.5th at pp. 1069-1070, father and mother did not share a home from which it would be possible to remove one parent. Moreover, the restraining order in that case protected the child by effectively barring the mother from the home. (Id. at p. 1069.) The restraining order in this case, as discussed more fully below, protected only mother from father; it did not encompass or result in protections for J.W. III. The reunification plan was adequate and did not improperly delegate decisions to a therapist.
At the November 9, 2018 hearing, the court remarked, "I am concerned about the fact that I allowed this child to be in this home for the last two weeks. That two weeks ago, I set a pre-detention investigation hearing more than two weeks out when I should have had it sooner based upon the Department's concerns, based upon the Department's request for a 730."
Father asserts that the services provided to him were inadequate because DCFS and the court failed to facilitate therapy for J.W. at Prototypes. He further contends that the therapeutic visitation order improperly delegated visitation decisions to a therapist and "was tantamount to a no visitation order." We are not persuaded.
"[W]henever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians." (§ 361.5, subd. (a).) Here, the juvenile court ordered individual counseling and psychiatric care for father, with service providers who had reviewed the Evidence Code section 730 evaluation. The court also ordered continued therapy for J.W., and monitored therapeutic visits for father and J.W. These services, which father does not challenge, are plainly aimed at, in father's words, "correct[ing] the perceived problems associated with Father's persistent concerns for the safety of his daughter."
Father instead argues he was "left with no services" because he was not able to get play therapy with J.W. at Prototypes even though J.W.'s current therapist said at one point that it would be possible for J.W. to receive those services. The record does not support this assertion. As noted above, the court ordered several types of services for father, including visits with J.W. in a therapeutic setting. Moreover, the court never ordered that the services were required to be through Prototypes; it instead ordered DCFS "to assist parents enroll minor in play therapy that each parent can participate in, preferably through Prototypes." Despite father's assertions to the contrary, DCFS did not "fail[ ] to take action" to carry out this order. CSW Morgan contacted J.W.'s current therapist, her former therapist at Prototypes, and the Prototypes office. She eventually learned "that Prototypes does not currently appear to offer the service that [father] is requesting (Play Therapy) and the therapist that he was previously assigned to is no longer with the agency." Morgan then reached out to J.W.'s current therapist, who expressed a willingness to incorporate father into J.W.'s existing play therapy after a team meeting was held to address the issue. DCFS's efforts to schedule such a meeting with father devolved into complaints about the agency's competence and father's alleged concerns for J.W.'s safety. Father cannot blame DCFS for his refusal to assist in setting up the services he desired.
Father also challenges the order for therapeutic visitation, which he claims was an impermissible delegation of the court's authority. While he is correct that the court may not delegate decisions over visitation to a child's therapist (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138), he incorrectly asserts that was the case here. The court here mandated that father receive monitored visits with J.W. at least once per week in the presence of a therapist familiar with father's mental health needs; it did not impermissibly permit the therapist to dictate the frequency or terms of the visits. Directives that a therapist "facilitate" visitation are permissible. (In re Chantal S. (1996) 13 Cal.4th 196, 213.)
Father further contends, without citation to the record or legal authority, that "[b]ecause of [his] financial inability the therapeutic visitation order was tantamount to a no visitation order and was clearly error." When an appellant fails to support an assertion with reasoned argument and citation to authority, we may consider the point waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) The contention lacks merit in any event. The juvenile court ordered DCFS "to explore funding through DCFS, either parent's insurance, Medi-Cal, and/or paid for by the father" when it partially granted DCFS's section 385 petition restricting father's visitation. The court did not require father to pay for any services; it suggested DCFS investigate that as one possible option at a stage in the case preceding disposition. IV. The restraining order was supported by substantial evidence.
A. Background
Mother initially requested a domestic violence restraining order against father on May 22, 2018. She included a declaration in which she described the May 8, 2018 statements father made to her and her attorney in court. Mother also asserted that father called her multiple times after the May 8 hearing and "left some disturbing voicemails." Mother did not provide notice of the restraining order request to father because she "was afraid that the violence would reoccur when I gave notice that I was asking for this order." The family court—not the juvenile court—granted mother a temporary restraining order the same day. The order was set to expire on June 12, 2018.
On June 12, 2018, counsel for all parties, mother, and father appeared before the juvenile court for a hearing on the restraining order. The court granted mother's request for a new temporary restraining order set to expire on July 18, 2018, the date on which the adjudication hearing was scheduled.
At the July 18, 2018 hearing, the court told the parties, "I'm basically going to use the proposed restraining order after hearing tomorrow . . . as a reissuance and grant the restraining order after hearing through August 24, with everyone on notice of August 24, 2018, being a further hearing on restraining order." At the August 24, 2018 hearing, father agreed that the restraining order could be extended until the next hearing date, which was set for October 23, 2018. That hearing subsequently was continued to November 9, 2018.
At the November 9, 2018 hearing, mother testified that father threatened her in court in May 2018 and had physically assaulted her in December 2015. Mother also testified about father's threat to shave J.W.'s hair if mother ever removed her tattoo of his name. She stated that she had applied for the restraining order because she felt threatened by father and feared that he was going to try to attack her. She acknowledged that father "has not made any new abuse, because I have stayed away and had no contact with him." Mother also acknowledged spending time with father in a hotel room in March 2018, near the close of their previous case. She testified that she "was trying to co-parent with him."
The alleged assaults, which formed the basis of the previous petition, occurred in December 2016.
The court asked father's counsel about father's numerous calls to the child protection hotline, which the court found "to be extreme and cause concern about the harassing behavior." Father's counsel argued that father was concerned about J.W. and had not actually threatened mother by calling the hotline. The court stated that "domestic violence isn't just physical, it's dynamics of power and control," to which counsel clarified she had been speaking "about physical violence." Counsel for DCFS and J.W. both informed the court they agreed with mother's request for the order. The court ultimately adopted that position and issued a restraining order protecting mother from father through November 8, 2023.
B. Analysis
Father contends the restraining order is not supported by substantial evidence because mother testified father had not made new threats against her, admitted that she had contacted father at the hotel in March 2018, while the preceding order was in effect, and "misrepresented the reason for the DCFS becoming involved in [J.W.]'s life in 2018."
Section 213.5, subdivision (a) authorizes the juvenile court to "issue an ex parte order enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, . . ., destroying the personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of any parent, legal guardian, or current caretaker of the child." Issuance of a restraining order under this provision "does not require 'evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child.' [Citation.] Nor does it require evidence of a reasonable apprehension of future abuse. [Citation.]" (In re C.Q. (2013) 219 Cal.App.4th 355, 363.) An order is warranted if the petitioner's safety may be jeopardized in its absence." (Id. at p. 364.) "In reviewing the restraining order, 'we view the evidence in a light most favorable to the respondent, and indulge all legitimate and reasonable inferences to uphold the juvenile court's determination. If there is substantial evidence supporting the order, the court's issuance of the restraining order may not be disturbed.' [Citation.]" (Ibid.)
The record contains substantial evidence supporting the issuance of the restraining order. Allegations of serious domestic violence between mother and father previously had been sustained. Mother testified that she felt threatened by the comments father made in court because of that history. There was evidence that father repeatedly contacted other entities, including DCFS, various law enforcement agencies, the county Board of Supervisors, and J.W.'s medical providers in an effort to impugn mother and her care of J.W.; the court reasonably could infer that father could direct such harassing behavior toward mother if not prevented from doing so. The court appropriately recognized that domestic violence may encompass "dynamics of power and control," which father's obsessive behavior in this case exemplified. We do not review any credibility determinations the court may have made regarding mother's testimony. (See In re Alexis E. (2009), 171 Cal.App.4th 438, 451.)
DISPOSITION
The findings and orders of the juvenile court are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.