Opinion
B296458
02-24-2020
In re A.E. et al., Persons Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. Eric E., Defendant and Appellant.
Pamela Rae Tripp for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine Miles, Assistant County Counsel and Aileen Wong, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18LJJP00620A-B) APPEAL from orders of the Superior Court of Los Angeles County, Jessica A. Uzcategui, Judge. Affirmed in part, reversed in part. Pamela Rae Tripp for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine Miles, Assistant County Counsel and Aileen Wong, Deputy County Counsel for Plaintiff and Respondent.
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INTRODUCTION
Appellant Eric E. is the father of minors A.E., born in October 2001, and her brother Adam E., born in January 2004. S.C. is the minors' mother. On March 14, 2019, the juvenile court found A.E. and Adam to be persons described under Welfare and Institutions Code section 300, subdivisions (b)(1) (hereinafter Section 300(b)(1)) and (c) (hereinafter Section 300(c)), and removed them from Eric's custody. In this appeal, Eric argues that substantial evidence supports neither the jurisdictional nor dispositional orders as to both minors. We reverse the court's jurisdictional and dispositional orders as to Adam and affirm in all other respects.
S.C. is not a party to this appeal.
At the adjudication hearing, the trial court sustained one count under Section 300(b)(1) and one count under Section 300(c). The Section 300(b)(1) count alleged that Eric was unable to provide A.E. with appropriate care and supervision due to her mental and emotional problems, including suicide attempts, and that this inability endangered A.E.'s physical health and safety and placed "the children" at risk of serious physical harm. The Section 300(c) count alleged that A.E. was diagnosed with major depressive disorder and suffered from significant anxiety, suicidal behavior, and suicide attempts, that Eric created situations that made A.E. feel hopeless and helpless, placing her at great risk of self-harm if forced to be in his care, and that "such conduct by the father" placed both A.E. and Adam at risk of serious emotional harm. After sustaining these two counts, the court removed the minors from Eric's custody.
Substantial evidence supports the court's jurisdictional and dispositional orders as to A.E. The record is replete with evidence that Eric neither believed A.E. was depressed or suicidal nor acknowledged that his behavior and parenting contributed to her mental health issues. Moreover, given that A.E. turned 18 over the course of this appeal, the question whether the court erred in removing A.E. from Eric's custody is now moot. Although a juvenile court may retain jurisdiction over nonminor children until they are 21, parents can no longer have "custody" of adults.
In contrast, the only bases for jurisdiction over Adam are the same two sustained counts. Even setting aside the inherent disconnect between Eric's behavior toward A.E. on the one hand and Adam's welfare on the other, no evidence supports the finding that Eric's inability to provide A.E. with care, or his actions toward her, caused Adam to be in danger of physical or emotional harm. Though the Los Angeles County Department of Children and Family Services (DCFS) urges us to affirm the court's orders regarding Adam because the record contains examples of Eric's abusive behavior toward Adam, the petition filed by DCFS did not allege that Eric behaved abusively toward Adam, and the court did not make any such findings. Accordingly, we reverse the court's jurisdictional and dispositional orders as to Adam.
STATEMENT OF RELEVANT FACTS
A. DCFS Investigates an Immediate Response Referral
On August 28, 2018, DCFS received an immediate response referral alleging that on August 25, 2018, A.E. "took an unknown number of pills because she wanted to die" and was "very sad and upset about being at her father's house." DCFS interviewed A.E. and S.C. about this incident and their relationship with Eric.
The referral also alleged that on or around August 21, 2018, Eric forced A.E. to drive his truck for several miles with no adult in the truck, even though she was unlicensed. Though DCFS's petition contained a count based on alleged incidents of unlicensed driving, we omit discussion of related facts because the court dismissed this count, and no party appeals from that dismissal.
S.C. stated she split custody of the minors with Eric. On August 26, 2018, A.E. handed S.C. a journal containing an entry in which she detailed taking an undisclosed number of pills the previous day while at Eric's house. S.C. stated that in 2013, A.E. had told her she was thinking of mixing chemicals into her ice cream, and had expressed negative thoughts about herself. When S.C. told Eric about this and asked to put A.E. into therapy, Eric did not believe her and initially opposed therapy before ultimately agreeing to have A.E. participate in four sessions. S.C. also stated Eric had participated in conjoint therapy with Adam, but the sessions ended because the therapist thought they were more "'futile than helpful.'"
A.E. described taking the pills as '"having a moment'" after her friend canceled plans to go to the fair, which upset A.E. enough to cry. A.E. claimed Eric failed to acknowledge her feelings. A.E. took pills one at a time but stated, "'I didn't really want to die, I just didn't want to be awake at my dad's.'" She denied current thoughts of suicide but stated Eric's home was "'cold'" and "'empty'" and that Eric was not affectionate, loving, or nice to her. A.E. claimed Eric had never physically abused her, but had abused Adam in the past. A.E. also complained of excessive punishments, that her father was short-tempered, and that she did not feel emotionally safe at her father's house and did not want to return.
The next day, the family law court held an ex parte hearing on an application brought by S.C. to alter her custody arrangement with Eric due to the incidents reported to DCFS. While the court refused to change custody arrangements on an ex parte basis, the court did order A.E. to start counseling with therapist Cathy House. When Eric objected to paying for the therapist because she was not part of Eric's health plan, S.C. offered to cover the cost.
That same day, DCFS interviewed Adam about the incident and his relationship with Eric. Adam stated A.E. had "a history of self-harm via scratching herself," and he had overheard A.E. and S.C. talk about A.E. "feeling suicidal." He reported that his mother was trying to get A.E. into therapy, but Eric was refusing to agree. Separately, Adam said his father's method of punishing him was to make him do pushups. When he recently refused to do pushups, Eric grabbed him by the back of the head and pulled him to the ground into a pushup position.
On August 30, 2018, A.E. told her mother she would hurt herself if forced to go to Eric's home after school. A week later, A.E. was involuntarily committed for evaluation pursuant to Welfare and Institutions Code, section 5585 et seq., "due to expressing suicidal ideation."
Welfare and Institutions Code, section 5585 et seq. provides, inter alia, for the "prompt evaluation and treatment of minors with mental health disorders . . . ." (Welf. & Inst. Code, § 5585.10, subd. (a).)
On September 6, 2018, DCFS spoke with a family friend who had known A.E. since she was in kindergarten, and whose daughter was a friend of A.E.'s. The family friend stated that her daughter reported to her on August 30 that A.E. had taken "a bunch of pills" while staying with Eric. The family friend also said she had noticed Adam and A.E. growing deeper in depression over the years.
That same day, DCFS interviewed A.E.'s therapist House, who had last treated her two years earlier, and who was preparing to treat A.E. again pursuant to the family court order. House had previously seen A.E. both individually and with Eric. She opined that Eric "wasn't receptive of the therapy or receptive of what [A.E.] was telling her father during sessions." The therapist believed Eric loved his children, but was "rigid in his thinking, and will talk a lot around an issue but never really address an issue."
DCFS also reviewed paperwork from a therapist whom Adam and Eric had seen from February 19 to July 24, 2018. That therapist noted Eric appeared "very controlling and seemed to want to dictate how the session would be handled." He noted that Adam "appears to have a great deal of anger directed towards his father and his dad's style of structuring." The therapist described Adam as "very open and honest about his frustration with his father who seems to discipline in a military style that he refuses to follow." The therapist noted that "'there is a reasonable probability of significant deterioration in an important area of life functioning: such as school or further acting out behaviors as [Adam] gets older and tests further limits.'"
DCFS also spoke with a previous social worker who had investigated a November 2017 incident where Eric forced Adam into Eric's car at school. During the course of the investigation, when the social worker advised Eric that his strictness was causing Adam to pull away, Eric responded that all social workers were "'mushy'" and lost in their feelings. The social worker noted obvious struggles in Adam's relationship with Eric, but concluded there was no evidence at the time to indicate emotional abuse, noting that Adam did not exhibit any emotional disturbance or indicate he wanted to harm himself.
On September 7, 2018, DCFS spoke with Adam's middle school counselor who stated Adam had "shut down more and more" since she had known him. The counselor stated "she could always tell at school whether Adam was staying with the father or the mother by the way he acted and carried himself," and that Adam stated when he would go to Eric's, "he would sit in his room the entire time and his father would take 'all of his stuff' and he would just lay in bed and wait for the day to end." At one point, Adam left through the back of the school to avoid going to his father's house. The counselor believed "the way Adam was avoiding time with his father went well beyond typical teenage rebellion." "[T]here were no outward signs of abuse or neglect besides the emotional abuse and alienation the children were experiencing." She described Eric as "very manipulative and controlling" and stated "she fears for the children in his care even to this day."
DCFS also spoke with a Kaiser therapist who had seen A.E. earlier that day, and who reported A.E. stated, "'I'd rather be dead than live with my dad'" and that she would self-harm if forced back into Eric's home. After meeting with A.E., the therapist met with S.C. and Eric. S.C. was receptive to what the therapist had to say, but Eric "wouldn't listen to [A.E.] or" the therapist. The therapist believed Eric was "in denial" about the suicide attempt, and kept insisting that A.E. took only one pill and refused to believe otherwise, even though the therapist stated A.E. claimed to have taken more than 20 pills. The therapist stated she did not think A.E. was "overtly suicidal at this point," but was "crying out for help" and the therapist was concerned that in those cries for help "a fatal mistake can be made and [A.E.] would lose her life."
On September 11, 2018, DCFS interviewed Eric. Eric "proceeded to speak at length regarding a multitude of topics and to dominate the conversation." Eric spoke of how he was "being alienated" by S.C.'s actions. He "reported that A.E. told him that she took 1 aspirin earlier," and that he had taken her and Adam out to sushi that night and she "was her normal and cheerful self" and ate "a large amount of sushi." Eric believed A.E. was not suicidal, but that S.C. was planting those thoughts in her head to "gain full custody of the children." The social workers noted that when they attempted to discuss the well-being of A.E. and Adam, Eric "would minimize [A.E.]'s suicidal ideation, and remained focused on the custody issues and issues with the mother. Father repeatedly noted that he would not forfeit his custody of the child in any capacity." Later that day, A.E. left a voicemail on a DCFS social worker's phone, "hysterically crying" and pleading for help because she was "scared to go to her father's house."
On September 12, 2018, DCFS interviewed A.E. at school. She stated she was "scared that she will want to self-harm again when she goes [to Eric's house]. [A.E.] reported that she is not currently feeling suicidal, but she typically doesn't feel like that until she goes to her father's home." A.E. admitted telling her father on August 25 that she had taken only one pill "because she 'wanted to die' and she didn't want him to react or get her medical attention if she told him that she really took 20+ pills."
At the adjudication hearing, A.E. testified that she later told Eric she had taken multiple pills.
On September 13, 2018, the Honorable Rudolf Diaz granted DCFS's application for a removal warrant. A.E. and Adam were detained the following day and placed with S.C.
B. DCFS Files a Petition
On September 19, 2018, DCFS filed a petition alleging two counts under Section 300(b)(1). The first count, b-1, alleged Eric placed A.E. and Adam in danger by forcing A.E. to drive herself and Adam for two-and-a-half miles even though A.E. was unlicensed. The second count, b-2, alleged that Eric was unable to provide A.E. with appropriate care and supervision due to A.E.'s mental and emotional problems, including suicide attempts, and that this inability endangered A.E.'s physical health and safety and placed "the children" at risk of serious physical harm. Eric waived the reading of the petition and denied the allegations. The court found a prima facie case for detaining A.E. and Adam, and released them to S.C.
Count b-2 provided: "The children, [A.E.] and Adam E[]'s father, Eric E[] is unable to provide the child, [A.E.], with appropriate care and supervision due to the child's mental and emotional problems, including suicide attempts. Such inability to provide ongoing care for the child by the father endangers the child's physical health and safety and places the children at risk of serious physical harm, damage and danger."
On October 24, 2018, DCFS again interviewed A.E., Adam, and S.C. A.E. stated she wanted to live with S.C. and did not want to see Eric for a while. When asked why she took pills on August 25, she responded she "'was just feeling super horrible and helpless because all of this has been going on for years and no one has helped! Nothing has helped!'" A.E. stated she felt like harming herself only when at Eric's house. A.E. also stated therapy with House was helpful. When asked what expectations she had of Eric as the DCFS case progressed, A.E. answered, "'I don't expect him to change. He's told me before, "I don't need to change for anyone, especially for you!"'"
Adam also stated he did not want to spend time with Eric. Adam related incidents of Eric forcing him into a car, and grabbing his shirt and bunching it up in his fist. When Adam was 12, Eric put both of Adam's arms behind his back and put him up against the car. Adam stated that being with his father was unpredictable, and that his father yelled at him a lot. Adam complained Eric's punishments were too harsh, for example taking $10 from him for forgetting to say "thank you."
S.C. stated she believed A.E.'s mental state and Adam's emotional state were caused by Eric. Four years prior, when Eric had left for Germany, A.E. stated she wanted to hurt herself and S.C. sent A.E. to therapy with House, but Eric stopped the therapy when he returned. One year later, A.E. started drawing pictures of knives and "'twisting'" her skin, and S.C. once saw A.E. bumping her head repeatedly against the steering wheel. S.C. stated "'I hope you guys can find a solution so they [A.E. and Adam] can have a productive relationship with their father. I don't want him out of their lives.'"
Due to scheduling issues and Eric's initial insistence that he be interviewed only with counsel present, DCFS was unable to interview Eric prior to submitting a jurisdiction/disposition report. On October 25, 2018, Eric submitted written statements to DCFS, listing his professional background and other characteristics he believed made him a good father. Regarding the pills, Eric stated he spent all day and night with A.E. that day, and that her writings and statements changed over time, depending on the audience and what response she wanted. He opined that A.E. "is learning, like so many teenagers do, of ways to twist her stories to get a desired result," and gave other examples of what he believed were A.E.'s manipulations.
On October 26, 2018, therapist House reported that both she and A.E. believed therapy was helpful and should continue. House believed A.E. should have some control in deciding visitation with Eric. "'At this point, she perceives staying at her father's house to be a very stressful and overwhelming experience. We are working on helping her to strengthen her coping skills and to have better coping skills that are less likely to result in self-harm.'" In a telephonic report on October 31, 2018, House stated she did not see A.E. as manipulative. House also reported that A.E. stated she would prefer not to see her father for many years because "'[h]e puts all of my bad emotions on blast'" and she feels "helpless and hopeless" when with him. House stated she had once attempted conjoint therapy with A.E. and Eric, but would not do so again, observing that Eric "'has no empathy and [is] incapable of another's perspective.'"
On November 1, 2018, DCFS interviewed Gabriel Castillo, the son of one of Eric's ex-girlfriends, who had lived with Eric from ages ten to 18. Gabriel stated Eric was "'strict and old school'" but admitted "[a]s I got older I realized it actually helped me." Gabriel said Eric was "probably more strict" with A.E. and Adam, but that A.E. would "'make a big scene. She literally would cry out of nowhere.'" Gabriel noted Eric yelled at his children, but did not verbally abuse them.
On December 12, 2018, therapist House provided a treatment update, stating A.E. had major depressive disorder but was currently in partial remission. A.E. also suffered from significant anxiety. House believed A.E. was "at risk for self-harm if the court returns her to her father's home at this time." House also opined that A.E. "is at risk for self-harm and suicidal behavior if she is forced to have unsupervised visits with her father."
C. DCFS Files an Amended Petition
On December 17, 2018, DCFS filed a first amended petition. It added a count under Section 300(c), alleging that A.E. was diagnosed with major depressive disorder and suffered from significant anxiety, suicidal behavior, and suicide attempts, that A.E. had been involuntarily hospitalized, that Eric created situations that placed A.E. at great risk of self-harm if forced to be in his care, and that "such conduct by the father" placed both A.E. and Adam at risk of serious emotional harm. Eric demurred to the amended petition.
Count c-1 provided: "The child, [A.E.'s] father, Eric E[], is unable to provide the child [A.E.] with appropriate care and supervision due to the child's mental and emotional state, which includes a diagnosis of Major Depressive Disorder; and the child is suffering from significant anxiety, suicidal behavior and suicidal attempts. On September 6, 2018, the child was involuntarily hospitalized as a result of her refusal to be picked up by father. The child [A.E.] has expressed that her father creates stressful and overwhelming situations, which leaves the child feeling powerless, hopeless and helpless. The child [A.E.] is at great risk of self-harm if forced to be in father, Eric E['s] care. Father's conduct has impacted the child [A.E.] such that the child has experienced multiple emotional stressors; and therefore such conduct by the father places the child and her sibling, Adam E[], at risk of serious emotional harm and damage."
On December 20, 2018, the court ordered A.E.'s visits with Eric to be reduced to once a month, and for Adam to begin therapy. On January 23, 2019, therapist House provided an update that A.E. was doing better, which A.E. "attributes to knowing what to expect regarding visitation with her father." On February 8, 2019, the parties participated in a mandatory settlement conference which resolved the issues with S.C. but not with Eric. On February 11, 2019, prior to the adjudication and disposition hearings, the court denied Eric's demurrer. Eric then denied the allegations of the amended petition.
D. Adjudication and Disposition
The court elected to hold the adjudication and disposition hearings simultaneously. The three-day hearing was held on February 11, 2019, March 13, 2019, and March 14, 2019. The court heard testimony from Eric, A.E., two DCFS personnel, and two visitation monitors.
Adam did not testify.
On the first day of the hearing, Eric testified that A.E. was diagnosed with major depressive disorder, but he did not believe she was "depressed at this time." Instead, he believed A.E. suffered "significant anxiety brought on by DCFS cases and the inability for [A.E. and Eric] to have normal contact and mother's alienation." Eric believed A.E. needed counseling for anxiety, such as the anxiety of seeing Eric in the hallways of the courthouse and "not feeling like she can say hello to her father." Eric did not believe A.E. ever attempted or threatened suicide. Regarding his visits with A.E., Eric testified, "we have a nice time when she shows up for that one visit a month. We were having a nice time when she was showing up three times a month." When asked what he had learned at a co-parenting class, he stated he learned the authoritative parenting style he used was the instructor's "number one pick," and that the "permissive style" that S.C. employed was "way down on the list."
As part of DCFS's examination of Eric, its counsel asked Eric several questions about his relationship with Adam. During a discussion between counsel and the court regarding the relevance of such questions, the court noted that "the primary thrust of the b-2 and c-1 claim is with respect to minor [A.E.]" DCFS counsel then stated he agreed that "Adam is not named . . . as to [count] b-2" -- the count alleging risk of physical harm. When Eric's counsel added that Adam was also not named in count c-1, the court responded "in fact, c-1 does indicate that father's conduct places both [A.E.] and her sibling in serious emotional harm."
Over Eric's objection, the court granted A.E.'s request to testify in chambers because "there is still evidence given the allegations of the amended petition that the minor is likely to be intimidated in a formal courtroom setting or afraid to testify in front of her parents." A.E. testified she had no real relationship with Eric and felt "like [a] robot or a maid" with him. The way Eric treated her made her "sad and stressed out," and if she was having a bad day, stepping into Eric's house "makes it worse."
Regarding the incident in which she took pills while at Eric's house, A.E. testified she was feeling "super overwhelmed and stressed" and "couldn't deal with being there [at Eric's house] anymore." She testified: "The minute you step into his car or into the area, it's just a huge weight on you. And I didn't want to deal with that anymore. And I didn't feel like I could." She "was feeling hopeless." A.E. testified that Eric has not acknowledged how A.E. feels or taken A.E. seriously, and he did not believe A.E. took multiple pills which made her "feel really sad." A.E. acknowledged initially telling Eric she took only one pill, but testified that was because she was feeling sad and was ready to die, and did not want to be rushed to the hospital. She clarified that she later told him she took multiple pills. A.E. stated therapy had been helpful for her, but she did not think conjoint therapy would be helpful, because "it would end up with a lot of yelling and [Eric] not realizing what might be an issue."
On the second day of the hearing, DCFS investigator Darlene Moore testified that she conducted the investigation and wrote the jurisdiction/disposition report, as well as an addendum. She acknowledged a lack of trust in Eric, but testified this did not affect her recommendations.
Moore had written an internal e-mail to her supervisor stating she did not trust Eric. She testified the distrust stemmed from "the detention hearing report [where it was documented] that father attempted to record [DCFS personnel] during their interview with him."
On the last day of the hearing, visitation monitor Christopher Thompson -- who first met Eric when they both joined the Navy Reserve in 2004 -- testified that Eric cared about his children, that the visits Thompson monitored were "good," and that during such visits Eric had not been angry or harsh toward his children and had followed all DCFS guidelines. A DCFS employee testified that she had no concerns about her own or her colleague's professionalism despite certain e-mails in which she had written "[A.E.] just turned 17. [Eric] talks like she's 13" and her colleague's e-mail stating, "no worries, Dad is all bark and bite, but Mom can definitely stir the pot." Lastly, visitation monitor Daniel Fawks -- Eric's uncle -- testified that the day after A.E. allegedly took the pills, Eric held a barbecue and A.E. was "lively, talkative, friendly," and "in good spirits." In the year before DCFS filed a petition, Fawks never saw Eric abuse his children or neglect their mental health needs. Fawks also admitted Eric could be overbearing towards his children, and stated that Eric had a "dominating personality."
Over Eric's objection, the court permitted DCFS to reopen its case to admit a last minute information containing a March 8, 2019, update from therapist House. House opined that Eric's "ongoing denial of the validity of [A.E.]'s mental health problems precludes his becoming part of her healing process, and contributes to [A.E.]'s alienation from her father." She also described the three periods of time in which she treated A.E.: 1) For the first period of treatment, which took place in 2013, Eric agreed only to limited sessions, but would not consent to further treatment even though she recommended it; 2) For the second period of treatment, in 2014, A.E. "was expressing anger and distress related to her relationship with her father, so at her request [House] agreed to speak to [Eric] on her behalf to convey her perceptions of him and to explore changes he could make in relating to her, as she was unwilling to speak directly to him in a session. During this session with [House, Eric] became agitated and angry and expressed no interest in [A.E.]'s complaints. He later informed [House] via email that NO ONE was allowed to tell him how to parent"; 3) For the third, present, period of treatment, House opined that A.E. "'suffers from chronic anxiety and depressed moods and behavior'" which she attributes to "a long-time relationship issue with her father." House stated that when with Eric, A.E. "becomes overwhelmed," "feels helpless and hopeless," and "experiences thoughts of escape by suicide and self-harm." She also reported that A.E. had recently "stated that she cannot and will not return to live with [Eric] because of the flood of feelings that make her want to hurt herself at times when she is there." House concluded by listing A.E.'s diagnoses as "Major Depressive Disorder, mild, partial remission," "General Anxiety Disorder," and "Parent-Child Relational Problem."
In closing arguments, counsel for A.E. and Adam asked the court to sustain the petition because Eric's disbelief that A.E. had mental health issues placed her in danger. The minors' counsel made no argument regarding Adam, but asked the court to place both children with S.C. Counsel for S.C. made no argument because S.C. was "non-offending."
Eric's counsel argued the court could not find jurisdiction over Adam under the b-2 count alleging risk of physical harm, because as DCFS had acknowledged, Adam was not named in it. Nor could the court find jurisdiction over Adam under the c-1 count alleging risk of emotional harm, because the allegations focused exclusively on Eric's failure to address A.E.'s emotional needs and the effect of this failure on her emotional health.
Regarding A.E., Eric's counsel argued the court could not find jurisdiction because there was no evidence that A.E. had suffered serious emotional damage, and in any case, Eric's behavior was not the cause of A.E.'s mental health issues. Eric's counsel also accused DCFS and S.C. of collusion, and argued A.E. was not in any current danger because "[h]er mild depressive [dis]order is now in remission."
Counsel for DCFS argued that the b-2 and c-1 counts were "intermingling" and urged the court to sustain both because Eric did not believe A.E. was depressed, Eric did not take her suicide attempts seriously, and she would not tell Eric when she had a problem because "he's a big part of the problem." DCFS argued the evidence supported the finding that A.E. "suffered severe emotional damage." As to Adam, DCFS's counsel stated:
"I'll concede at this point we haven't shown that Adam has suffered serious emotional damage as evidenced by severe anxiety depression. However, you do not have to show that he has been actually damaged or that he actually currently has severe anxiety. He's at substantial risk of suffering serious emotional harm."Counsel further argued:
"[T]he effect that [A.E.'s] suffering has had on Adam I believe is clearly before the court. Enough to find that this child is by preponderance of the evidence at substantial risk of serious physical harm. And that it is as a result of the conduct by a parent or guardian, which is to say the minor [A.E.] and Adam both qualify under section 300 c as well as b."
Previously, DCFS counsel had acknowledged that Adam was not named in the b-2 count.
After a brief recess, the court indicated it had "considered all of the evidence, testimony and arguments of counsel" and dismissed the b-1 count (regarding unlicensed driving) but sustained the b-2 and c-1 counts, finding both minors to be "persons described by WIC section 300, subdivision b and c." The court specifically found that Eric's conduct was offending, that A.E. was suffering serious emotional damage, and that Eric's conduct caused A.E.'s emotional damage. The court also found that the DCFS personnel involved in the case were not biased or prejudiced against Eric, and that their opinions about Eric did not affect their recommendations. The court did not mention Adam. As to disposition, the court found that "continuance in the home of father is contrary to the minor's [sic] welfare" and that "there are no reasonable means by which the minors' physical health can be protected without removing them from the father's physical custody." The court specifically noted that A.E. did not experience the urge to hurt herself when with her mother, and that therapist House had opined A.E. would be a danger to herself if forced to live with her father. Again, the court neither said anything about Adam nor discussed conduct by Eric that endangered Adam's physical or emotional health. The court ordered the minors removed from Eric's custody and placed with S.C. Eric appealed the next day.
The record reflects the court stated it was sustaining the counts "as amended," but did not identify what the amendments were. Later, when DCFS's counsel asked to confirm that "[t]he court did not make any amendments to b-2 or c-1, correct?" the court replied, "correct." Additionally, the minute orders from the hearing reflect that "count B2 and C1 are found true as alleged." On appeal, neither party suggests the counts were amended. We therefore find the counts were sustained as alleged.
DISCUSSION
"On appeal, the 'substantial evidence' test is the appropriate standard of review for both the jurisdictional and dispositional findings." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under a substantial evidence review, "'we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders. Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment. [Citation.]'" (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560, quoting In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) "Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
A. Substantial Evidence Supports the Court's Jurisdictional Order Over A.E.
In sustaining the b-2 and c-1 counts, the court found jurisdiction existed over A.E. under both Section 300(b)(1) and Section 300(c). Section 300(b)(1) provides that a minor may be adjudged a dependent of the court if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment . . . ." Section 300(c) provides that a minor may be a dependent if "[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent . . . ."
In his brief, Eric argues the court's jurisdictional finding over A.E. was erroneous because "there was not sufficient evidence A.E. was at significant danger of suffering serious emotional damage without dependency jurisdiction" and "a 'Tense' [sic] atmosphere caused by a parental divorce is not a sufficient predicate for exercise of jurisdiction under [Welfare and Institutions Code section 300,] subdivision (c)."
First, Eric does not challenge the court's finding that there was a substantial risk A.E. would suffer serious physical harm (e.g. death or serious physical harm by suicide attempt) due to his inability to provide her with adequate care. Because such a finding is sufficient for the court to find jurisdiction under Section 300(b)(1), we need not consider whether substantial evidence supports the court's finding of jurisdiction under Section 300(c). (See, e.g., In re Alexis E., supra, 171 Cal.App.4th at p. 451 ["When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence"].)
Moreover, Eric's attempt to cast A.E.'s troubles as merely "a '[t]ense' atmosphere caused by a parental divorce" ignores the mountain of evidence that A.E.'s mental health issues were significantly more serious. On August 30, 2018, A.E. told her mother she would hurt herself if forced to go to Eric's home after school and was involuntarily hospitalized after expressing suicidal ideation. A.E.'s therapist diagnosed her as suffering from "Major Depressive Disorder, mild, partial remission," and "General Anxiety Disorder." Therapist House also confirmed that A.E. became "overwhelmed" when with Eric, felt "helpless and hopeless," and experienced "thoughts of escape by suicide and self-harm." House opined that if forced to live with Eric or even have unsupervised visits with him, A.E. was "at risk for self-harm and suicidal behavior." Under these circumstances, substantial evidence supports the court's jurisdictional finding over A.E.
Eric's reliance on In re Brison C. (2000) 81 Cal.App.4th 1373 to argue "there was not sufficient evidence A.E. was at significant danger of suffering serious emotional damage without dependency jurisdiction" is misplaced. There, both parents admitted fault and vowed to improve. (Id. at p. 1377.) Here, by contrast, Eric denied any responsibility for A.E.'s condition and refused to acknowledge any need to change. In Brison, the minor's therapist provided no evaluation of his current mental condition, and the previous psychological evaluations were "years out of date." (Id. at p. 1380.) Here, less than a week before the court ruled, A.E.'s therapist provided an update stating that Eric was part of the problem, and that A.E. "suffers from chronic anxiety and depressed moods and behavior." In Brison, the "sole indication" of the minor's emotional difficulties was his "deep dislike and fear of his father." (Ibid.) Here, A.E.'s emotional difficulties were also indicated by her suicide attempt.
B. Substantial Evidence Supports the Court's Dispositional Order as to A.E., Which is Now Moot
Eric next argues "there was insufficient evidence to support the juvenile court's dispositional order removing A.E. from his custody." He also "contends there were less restrictive means to protect A.E. without removal from his custody." For example, "the court could have ordered that the children remain in the home of their respective parents with counseling orders in place, and under court and the Department's supervision."
Welfare and Institutions Code section 361, subdivision (c)(1), provides that a court may not remove a child from a parent's custody absent clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody. . . ." Substantial evidence supports the court's conclusion that "there is or would be a substantial danger to the physical health, safety, protection or physical or emotional well-being of [A.E.] if [she] were returned home" and that "no services are available to prevent removal." As noted above, both A.E. and her therapist repeatedly confirmed that A.E. felt like harming herself only when forced to be at Eric's house. Eric's uncle testified that Eric was "overbearing" toward A.E. and had a "dominating personality." When asked what he had learned in co-parenting class, Eric testified that he learned his authoritative parenting style was best. Moreover, despite being told otherwise by his daughter and his daughter's therapist, Eric still refused to believe that A.E. suffered from depression or that he was a cause of her anxiety, blaming DCFS and S.C. instead. He refused to believe A.E. took more than one pill on August 25, 2018, or ever attempted or threatened suicide. A.E. made clear it was Eric's treatment of her that let loose "the flood of feelings that make her want to hurt herself at times when she is there." House gave her professional opinion that A.E. was "at risk for self-harm if the court returns her to her father's home . . . ." Under such circumstances, ordering A.E. returned to Eric's custody "with counseling orders in place, and under court and the Department's supervision," as Eric suggests, would not have sufficiently protected A.E., because Eric did not believe that his behavior would cause A.E. to harm herself, and he steadfastly refused to change his behavior. Therefore, substantial evidence supports the court's finding by clear and convincing evidence that "there is or would be a substantial danger to the physical health, safety, protection or physical or emotional well-being of [A.E.] if [she] were returned home" and that "no services are available to prevent removal."
Additionally, we note that since briefing in this matter was completed, the argument has become moot, as A.E. turned 18 on October 12, 2019, and therefore cannot be returned to Eric's custody. "[T]he statutory framework does not allow a parent to reunify with a dependent child who has turned 18 because a parent cannot have physical custody of an adult." (In re K.L. (2012) 210 Cal.App.4th 632, 640.) While "[t]he court may retain jurisdiction over any person who is found to be a ward or a dependent child of the juvenile court until the ward or dependent child attains 21 years of age" (Welf. & Inst. Code, § 303, subd. (a)), "[n]othing in this code . . . shall be construed to . . . abrogate any other rights that a person who has attained 18 years of age may have as an adult under California law" (id., subd. (d)(1)). "An adult . . . is not in the custody of either parent." (Edwards v. Edwards (2008) 162 Cal.App.4th 136, 143.) Therefore, whether the court order removing A.E. from Eric's custody was erroneous is moot. (See, e.g., In re David B. (2017) 12 Cal.App.5th 633, 644 ["'[T]he critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error'"], quoting In re N.S. (2016) 245 Cal.App.4th 53, 60.)
C. Substantial Evidence Does not Support the Jurisdictional Finding as to Adam
The bases for jurisdiction as to Adam were the two sustained counts (b-2 and c-1) discussed above. As noted, count b-2 provided: "The children, [A.E.] and Adam E[]'s father, Eric E[] is unable to provide the child, [A.E.], with appropriate care and supervision due to the child's mental and emotional problems, including suicide attempts. Such inability to provide ongoing care for the child by the father endangers the child's physical health and safety and places the children at risk of serious physical harm, damage and danger." (Italics added.) Count c-1 provided: "The child, [A.E.'s] father, Eric E[], is unable to provide the child [A.E.] with appropriate care and supervision due to the child's mental and emotional state, which includes a diagnosis of major depressive disorder; and the child is suffering from significant anxiety, suicidal behavior and suicidal attempts. On September 6, 2018, the child was involuntarily hospitalized as a result of her refusal to be picked up by father. The child [A.E.] has expressed that her father creates stressful and overwhelming situations, which leaves the child feeling powerless, hopeless and helpless. The child [A.E.] is at great risk of self-harm if forced to be in father, Eric E['s] care. Father's conduct has impacted the child [A.E.] such that the child has experienced multiple emotional stressors; and therefore such conduct by the father places the child and her sibling, Adam E[], at risk of serious emotional harm and damage." (Italics added.)
In finding jurisdiction over Adam under count b-2, the court necessarily found that Eric's inability "to provide [A.E.] with appropriate care and supervision due to [A.E.]'s mental and emotional state" placed Adam "at risk of serious physical harm, damage and danger." The record does not support this conclusion. There is no logical connection between Eric's inability to provide A.E. with appropriate care and supervision due to her mental and emotional state and the risk of serious physical harm to Adam. In fact, counsel for DCFS initially acknowledged that Adam was not named in the b-2 count, before apparently changing his position during closing argument. In any case, no evidence in the record supports a finding that Eric's inability to provide A.E. with care placed Adam at risk of serious physical harm.
Similarly, by finding jurisdiction over Adam based on count c-1, the court necessarily found that Eric's conduct toward A.E. -- the only conduct identified in the allegation -- placed Adam "at risk of serious emotional harm and damage." While such an allegation also seems unlikely, it is at least conceivable that DCFS could have presented evidence to support it. But DCFS points to no such evidence, and we have discerned none in our review of the record.
In its brief, DCFS argues that "looking at the totality of the circumstances, father's behavior also placed Adam at risk of emotional abuse." DCFS points to evidence in the record such as Adam's school counselor believing Eric was emotionally abusing Adam, Adam not wanting to spend time with his father, Adam running away from his father's home, Eric yelling at Adam, and some evidence of physical abuse. DCFS may be correct that substantial evidence in the record would support a finding that Eric's behavior directed toward Adam placed Adam at a substantial risk of emotional harm. But the operative petition contained no such allegations; it focused exclusively on Eric's failure to address A.E.'s emotional needs and the effect of his conduct on her emotional state. Nor did the court make any factual findings regarding Eric's conduct toward Adam or its effect on him. DCFS cites no authority permitting us to affirm a jurisdictional order based on findings the court did not actually make.
DCFS's argument that we look at the totality of the circumstances is similar to the provisions of Welfare and Institutions Code, section 300, subdivision (j) (Section 300(j)) which permits the court to find a minor to be a dependent of the court if "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." Though DCFS does not ask us to affirm the court's ruling under Section 300(j), we could not do so even if a count under Section 300(j) had been pled. As DCFS itself noted in its closing argument, "[t]he court can't apply a [Section 300(j)] count regarding the sibling based on c-1." Section 300(c) is not one of the enumerated subdivisions upon which a Section 300(j) count can be based.
DCFS cites In re J.K., supra, 174 Cal.App.4th at p. 1440 for the proposition that we should look at the "totality of the circumstances" in deciding whether substantial evidence supports the court's findings. But in J.K., the petition alleged that Father had struck and dislocated the minor's shoulder, that Father had raped the child, and that Mother knew of these incidents but had failed to protect her. (Id. at pp. 1429-1430.) When the court considered the totality of the circumstances, it was considering "the severity of the incidents [pled in the petition], the fact that there was not a substantial lapse of time between the two instances of abuse or between the last instance and the filing of the petition, Father and Minor's sporadic contact, and Mother's persistent failure to protect the Minor." (Id. at p. 1440, fn. omitted.) It was not considering incidents not pled in the petition and not found by the court to be true. J.K. is thus inapplicable.
Because the jurisdictional finding as to Adam is reversed, the dispositional finding must also be reversed. (See, e.g., In re Andrew S. (2016) 2 Cal.App.5th 536, 544 ["Because we reverse the jurisdiction finding as to [father], the court's findings cannot support a disposition order denying him custody of the children"].)
DISPOSITION
The court's jurisdictional and dispositional orders regarding Adam are reversed. In all other respects, the court's orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: COLLINS, J. CURREY, J.