Opinion
B297886
09-21-2020
In re A.A. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. H.A., Defendant and Appellant.
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates, Arezoo Pichvai, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. No. DK10197) APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Commissioner. Affirmed. Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates, Arezoo Pichvai, for Plaintiff and Respondent.
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H.A. (father) appeals from the dependency court's jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (a) and (b)(1), as well as dispositional orders under section 361, subdivision (c)(1), removing his son A.A. and his daughter Al.A. from his custody. Father contends the orders are not supported by substantial evidence. Respondent Los Angeles County Department of Children and Family Services (Department) contends the findings and orders are supported by substantial evidence. We affirm the jurisdictional findings and the removal order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
"In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.) We also limit our summary to the facts most relevant to father's appeal.
Father's opening brief seems to ignore this appellate maxim, presenting selected evidence in a manner designed to favor father.
1. Family background and lead-up to father's involvement in dependency case (2009 - October 2016)
a) Family makeup and international custody dispute
L.F. (mother) had four children: N.A. (born August 2000), Ay.A. (born September 2006), A.A. (born January 2008), and Al.A. (born November 2009). Father is not N.A.'s biological father, but the court found him to be N.A.'s presumed father; and he is the biological father of Ay.A., A.A., and Al.A. A.A. and Al.A. (the children) are the only children at issue in this appeal, but we will present facts regarding the other children to provide context for the court's ruling.
Mother is deceased. Only father's appeal is now before us for decision.
Mother and father previously lived together in Las Vegas, Nevada with N.A., A.A., and Ay.A. In June 2009, father and Ay.A. left for Egypt. A.A. was 16 months old and mother was pregnant with Al.A. Six months later, when she was still pregnant with Al.A., mother filed in Nevada the initial paperwork for a divorce from father, seeking sole custody of all four children. Mother subsequently obtained a family law order awarding her sole custody, as well as a separate order for Ay.A.'s return. In May of 2013, the Nevada state attorney general filed a criminal complaint against father and issued a warrant for his arrest for failing to return Ay.A. to mother's custody.
Father argues he never received notice of the divorce or custody orders, but evidence that mother obtained such orders well before the current dependency proceedings began—regardless of whether she effected proper service—is relevant to the nature of her ongoing relationship with father and concerns she later expressed about his actions.
b) Dependency investigation and initial case proceedings
The Department began investigating mother's ability to care for N.A., A.A., and Al.A. in February 2015. During the investigation, mother identified father, but explained he did not have contact with the children because he was in Egypt and was wanted for kidnapping Ay.A. Mother also told the social worker that father used to beat her up. The Department filed a dependency petition based on mother's history of mental and emotional problems; the petition did not contain any allegations against father. At the detention hearing, mother said she had an email address for father, but could not remember it. The court asked mother to provide father's e-mail address to the Department, found father to be the children's presumed father, and ordered the Department to contact father through the email address or to conduct a due diligence to see if there was a United States mailing address for father. The Department's due diligence search provided a Las Vegas address, and the Department mailed notice of the jurisdiction and disposition hearings to that address. After declaring the children dependents on May 20, 2015, the court asked mother to try to locate an address for father for the next court date.
Mother had been investigated by child welfare agencies in Nevada and in Los Angeles on prior occasions, including during a six-month period in 2012 when mother entered into a voluntary family maintenance agreement and received family preservation services.
The Department's November 2015 six-month review report included interview notes where mother reported father had abducted Ay.A., and a copy of a notice listing Ay.A. as "Missing." The notice listed the Nevada Attorney General's Office as the investigating office and stated "[Ay.A.] disappeared from North Las Vegas, Nevada on June 1, 2009. She was allegedly abducted by her non-custodial father. . . . They may be in Egypt." The Department's declaration of due diligence explained that father's last Las Vegas address was not effective. At the six-month hearing, the court asked mother if she had father's contact information, and again directed her to provide the information to the Department, stating, "Maybe the Department can email him."
There is evidence in the record that father was in contact with N.A. and possibly mother in early March 2016. The foster family caring for N.A. and A.A. expressed concern that father was trying to get back in the country, and N.A. and A.A.'s placements were changed shortly thereafter, on March 18, 2016, with the two children placed in different foster homes.
Mother had significant health problems and died on March 29, 2016, with the dependency case still pending. N.A., A.A., and Al.A. were in three different foster home placements, but maternal grandparents took the children for almost a week to inform them of mother's passing, and for the children to attend mother's funeral. N.A. and A.A. were referred to grief counseling. The Department also reported that despite a prior order, mother did not provide the Department with father's email address before she died. The court found reunification services terminated by operation of law; father's whereabouts were unknown in Egypt, and the Department was ordered to do adoptive planning, making best efforts to place all three minors together.
c) Father's efforts to get involved in dependency case
Father learned of mother's death and sought to contact the Department worker in an effort to obtain custody of the children. In late May 2016, after mother had passed, the Nevada criminal complaint against father for child abduction was dismissed based on mother's death, and the outstanding warrant for father's arrest was recalled, presumably in response to a request by father's attorney.
In September 2016, the social worker spoke with father by phone. Father reported that he took Ay.A. to Egypt with mother's consent, and before he knew that mother was pregnant with Al.A. He explained that the kidnapping charges had been dropped, he had given the paperwork to his attorney, he was working on getting a visa to travel to the United States, and he wanted to speak to the children and send them gifts. The same month, father made a special appearance through counsel and filed a section 388 motion, seeking to have the adjudication and disposition set aside for lack of notice. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477 [a parent may challenge the juvenile court's jurisdiction for lack of proper notice under section 388].) In his motion papers, father stated he was "seeking an order that this case be returned to the initial hearing and that his children be placed with him in Egypt, along with their sibling." The court granted father's motion on October 14, 2016, setting aside the prior adjudication and disposition orders, and scheduling a new disposition hearing to take place on November 7, 2016. The court gave the Department discretion to permit telephonic contact between father and the children.
2. Section 342 petition, service, investigation, and visits (November 2016 - May 2017)
On November 7, 2016, the Department filed a subsequent petition under section 342, alleging minors N.A., A.A., and Al.A. were dependents described by section 300, subdivisions (a), (b), and (j), based on father's physical abuse, domestic violence between mother and father, and neglect of N.A.
After initial delays related to serving the subsequent petition on father, the court ordered the Department to conduct additional interviews and provide more structure for his telephone visits.
a) Visitation
Between November 2016 and January 2017, the social worker made biweekly visits to the children's respective foster homes to ask whether they wished to speak to father by phone. Father sent gifts for A.A. and Al.A. Al.A. consistently but politely refused any telephone conversations. The social worker accompanied N.A. to A.A.'s foster home, where the N.A. and A.A. would talk to father and Ay.A. over the phone. In January 2017, N.A. told the social worker he did not want a relationship with father; he explained he was participating in the phone visits to make sure his brother and sister (A.A. and Al.A.) did not slip up and inform father of the children's location, where he could find them. Later, A.A. began refusing to participate in phone calls with father.
b) Father's admonishment request
At a hearing on February 9, 2017, father's counsel requested an order preventing any discussion about the case or any case issues with A.A. and Al.A. by N.A., the social worker, or the caretakers, and for N.A. to not be present during phone visits. The Department objected. Following discussion with the court about the recent phone visits and the need to provide therapy to the children, minor's counsel joined in the Department's objection and argued that there was a need for therapy. The court stated that it would not interfere in the relationship between the children, noting that siblings often share opinions about their parents amongst themselves.
c) Children's therapy
Both A.A. and Al.A. participated in individual therapy. A January 2017 letter stated that Al.A. had been discharged from mental health services because she had met her treatment goals. The letter's author stated she would be "unable to hold conjoint sessions with [Al.A.] and her biological father due to [Al.A.'s] progress in daily functioning as well as due to [Al.A.] explicitly stating that she does not want to speak with her biological father." A.A. was referred for mental health services in early February 2017; he was assessed, treatment goals were established that same month, and he was due to start individual therapy in early April. Therapeutic phone visits were not possible because the focus would be on building trust and rapport between A.A. and his therapist. Father also participated in a psychological evaluation, and the Department interviewed father's current wife and his daughter Ay.A.
3. Department's detention and jurisdiction/disposition reports with evidence in support of petition
The Department's reports included past and current statements by mother and N.A. regarding father's acts of domestic violence, physical abuse, and neglect. The reports also included documentary evidence of incidents in 2007 and 2008. We provide a brief summary of the relevant evidence.
a) Domestic violence (counts a-2 and b-2)
A 2007 police report described an incident where mother and father argued about mother's pregnancy, and mother locked father out of the home. The next morning, mother called 911 while father was banging on the door. Father broke the door open, and responding police found mother and father arguing in the master bedroom. Father refused to comply with police orders and had to be physically restrained. Father admitted to cutting off power to the house in an effort to get in, but denied touching mother. Father agreed to leave the property for a few hours so mother could gather some property and leave. Father acknowledged the incident, stating he had walked home and slept outside in the rain because he did not have his keys. In the morning, he broke down the door because he heard noises inside, stating "it is my home, I can bust the door." According to father, law enforcement responded because mother made up a story that father was attacking her.
In 2012, mother and N.A. told a social worker about domestic violence between mother and father, as well as acts of physical abuse by father against N.A.
In March 2015, when the children were initially detained, mother identified father, explaining that there was domestic violence in their relationship. Mother stated father was in Egypt and would not return to the United States because he was wanted for kidnapping their daughter Ay.A. in June 2009.
Maternal grandmother reported having a very open relationship with mother before she became involved with father, but that after the two were married, mother became very secretive, telling maternal grandmother not to visit. Maternal grandmother described the relationship between mother and father as "very contentious." She saw mother with a black eye once, and she said N.A. would be the best person to describe what had happened in the home.
In a November 2016 interview, N.A. recalled several incidents, including: seeing father backhanding mother and causing her to fall to the ground, and another incident after father started hitting mother when mother tried to protect N.A. by leaving and staying at a motel for a while. N.A. also described an incident similar to the one described in the 2007 police report. In addition, N.A. described an incident, when mother was pregnant with Al.A., where father tried to push mother down the stairs and N.A. tried to stop him. According to N.A., that was when he learned that father was not his real father, and the family went to stay at a shelter. N.A. described father as very volatile and controlling; father would be calm and then seconds later would have a fit of rage directing violence towards mother and N.A. N.A. reported observing bruises on mother, and that father had threatened violence towards N.A.
b) Physical abuse (counts a-1, b-1, and j-1)
In November 2016, N.A. described several incidents where father reacted in a manner out of proportion to N.A.'s acts. All of these incidents took place before father left for Egypt in 2009. For example, father doused N.A. with water from a bucket and a hose for a long time after he caught N.A. in a friend's swimming pool without permission. Father also forced N.A. to drink a cup filled with water and father's saliva after N.A. had tricked father into drinking a glass of water that N.A. had spit into. When N.A. would have trouble understanding his homework, father would pinch his ears, forcing N.A.'s face closer to the table, until N.A.'s ear was red and ringing.
c) Neglect/endangerment (counts b-3 and j-2)
Both maternal grandmother and N.A. described an incident in May 2008 where father left N.A. in the car at Walmart, and N.A. ended up walking home. Law enforcement officers were at the home when N.A. arrived, and father had to take parenting classes. A police report of the incident stated that father was cited for contributory delinquency.
d) Evidence concerning Ay.A.
When a social worker asked maternal grandmother about the possibility of returning the children to their father, maternal grandmother voiced extreme concern for the children's safety and well-being, stating that father had kidnapped Ay.A. and taken mother's and the other children's passports with him so mother could not follow and retrieve Ay.A. N.A. stated he hated father for all the things father did to mother, and he was unwilling to maintain contact or have an in-person visit with father. The Department reported that father had little to no contact with the children between June 2009 and September 2016, and mother had no contact with Ay.A. during that time.
4. Adjudication hearing (July 2017 to October 2017)
The juvenile court conducted an adjudication hearing on three dates: July 18, 2017, September 25, 2017, and October 5, 2017. On July 18, 2017, the court admitted into evidence the Department's reports and attachments, with no objection from any other party. It heard testimony from N.A. and Ay.A.
a) N.A.'s testimony
N.A. testified about an incident where he disobeyed father and went swimming without permission. Father found him and threw buckets of water at him. When N.A. disobeyed or did not understand his homework, father would slap N.A. and pull his ears, to the point where they were red and ringing. Once, N.A. gave father a glass of water that N.A. had spit into, which father drank. After N.A. announced what he had done, father took N.A. into the bathroom, spit into a cup with a little bit of water in it, and denied N.A. anything to drink until N.A. drank the cup with father's spit in it.
N.A. testified about ongoing abuse by father towards mother, affirming that there were at least 20 incidents of violence while he was between six and eight years old. He remembered seeing bruises on mother, and remembered law enforcement coming to the home on more than one occasion.
b) Ay.A.'s testimony
Ay.A. testified that she was ten years old. Father and her step-mother married when Ay.A. was four or five years old. When Ay.A. was asked if her parents ever argued, she answered "no." Responding to questioning about how father disciplined Ay.A., she said "he doesn't hit me or something like it," but instead takes away her screen time. Ay.A. confirmed that father was in the room when she testified.
c) Ongoing visitation
At the July 18, 2017 hearing, father raised concerns that, over the past seven months, he had spoken by phone with his children only three times. The Department responded that it made regular efforts to facilitate phone calls, but the children were too old to be forced, and they refused to participate. The court ordered the Department to ensure that the call was placed and father was available, with the connection already established, and the children were invited into the room to participate, but that no one could physically force the children into the room. A last minute information report dated September 25, 2017, documented the social worker's efforts, which included instances where father did not respond to texts confirming telephone visits, where A.A. and Al.A. refused to speak with father, and one instance where A.A. spoke very briefly with father to say "I do not want you interfering in my life. I am happy where I am."
When father's counsel raised the issue again at the hearing on October 5, 2017, the court reiterated that while it could not force the children to participate in the call, it was incumbent upon the Department to provide father a written visitation schedule for weekly visits, ensure that the children were at the location, establish the connection, and leave the connection open. The question of conjoint counseling was deferred to the disposition hearing.
d) Argument and decision sustaining petition allegations
On September 25, 2017, the court heard argument from all sides. Father's attorney asked the court to dismiss the petition allegations, while the Department and minor's counsel argued that jurisdiction was warranted. The court took the matter under submission. On October 5, 2017, the juvenile court sustained all of the petition allegations. It acknowledged that much of the evidence concerned events that occurred before father left for Egypt in 2009, but in the absence of evidence that father had addressed the problems, and based on the totality of the circumstances, jurisdiction was warranted.
5. Visitation and progress reports (October 2017 - 2018)
In the full year before the court started the disposition hearing, the Department continued to facilitate telephonic visits for father, although A.A. and Al.A. continued to insist that they were not interested in speaking with father. The Department reported that the level of communication remained poor. Some of father's statements during calls reflected a lack of understanding of the impact his departure to Egypt had on the children. He would blame mother for his lack of communication, causing Al.A. to become defensive of mother. He would also demand that the children should talk to him because they are his children. During one call on May 22, 2018, when Al.A. told father she did not want to talk to him, father asked why she did not want to talk, causing Al.A. to become emotional. When the social worker suggested that father ask how Al.A. is doing, rather than asking why she didn't want to talk, father became angry and started yelling at the social worker.
From October 2017 until February 2018, father's counsel and the Department were negotiating father's reunification services. The Department initially recommended against reunification services, based on concerns such as father's residence being in Egypt, the absence of any contact between father and the children until after mother's death, and the inability to assess the safety of father's home. After a child and family team (CFT) meeting, it recommended father enroll in parenting education and individual therapy, and obtain a psychiatric assessment by a psychiatrist licensed to practice in Los Angeles. The Department would also provide monitored telephonic visits and work toward conjoint counseling, contingent on approval from the children's therapists. Father's attorney would find a conjoint therapist licensed to practice in Los Angeles County and approved by the Department.
a) Potential visit in Egypt
On July 9, 2018, after a discussion in chambers and over minor's counsel's objections to an in-person visit, the court reviewed with the parties an order proposed by father's attorney. The proposed order directed the Department to outline each step necessary for A.A. and Al.A. to travel out of the country to Egypt for a face-to-face visit with father in Egypt, including what safety plan, travel plan, and/or plan of supervision would be recommended for father and the children to have a successful visit. Under the attorney's proposed order, the Department would provide reports from both children's therapists on what impediments kept conjoint counseling from going forward, and a specific plan for overcoming those impediments. The Department and minor's counsel argued that neither conjoint counseling nor an in-person visit was being recommended. The Department's attorney reiterated that the children's individual therapists were not recommending conjoint therapy, and even if they were, the Department of Mental Health did not offer conjoint counseling, so an outside provider must be identified by either minor's counsel or father's counsel. The Department provided a resource guide with a list of therapists, and everyone understood that father was willing to pay out of pocket. Minor's counsel objected to any kind of visit unless safeguards were securely in place. The court clarified that it was not yet ordering either conjoint counseling or an in-person visit, it was just was asking for a report on the logistics and requirements.
The Department's July 18, 2018 last minute information report outlined the steps necessary to move towards face-to-face visits, as well what was necessary to overcome impediments to conjoint counseling sessions between the children and father. The visitation logs for March through July 10, 2018 were attached, along with letters from the therapists who treated A.A. and Al.A. According to the Department, the communication between father and the children needed improvement. A.A.'s previous therapist had reported in August 2017 that conjoint counseling was not recommended, based on A.A.'s anxiety. His therapy sessions had ended in December 2017, based on having reached his treatment goals. A.A.'s therapist attended a CFT for the family and was under the impression that conjoint therapy would be provided through a different provider. A.A. received a new therapy referral on July 17, 2018, after he stated he would kill himself if father tried to take him by force. Al.A.'s caregiver also reported that Al.A.'s therapy had previously ended because she was doing fine, but she started experiencing anxiety and nightmares when the phone conversations with father started. As Al.A.'s anxiety increased, she started showing challenging behaviors, such as stealing. Based on Al.A.'s change in behavior, she started seeing a new therapist around May 2018. According to the new therapist, Al.A. used to show her anxiety by hiding behind her foster mother or hiding in her room, but she was learning how to express her feelings and reduce her anxiety levels. The therapist did not feel that Al.A. was ready for conjoint sessions, as she was still working on reducing her anxiety and expressing her feelings.
The Department reported that conjoint counseling would start once it was deemed appropriate by the children's current therapists. Identifying impediments to a face-to-face visit, the Department reported that any such visit would need to happen in a therapeutic setting, and if the children were traveling, they would need to get passports, and they would need to be accompanied by a conjoint therapist licensed to practice outside the country as well as either their current caregivers or maternal relatives.
Addressing what services were needed for father, the Department reported that "Father has made it clear to the Department that all the correspondence has to be made via his attorney." Through its own attorney, the Department provided father's attorney with a resource guide in October 2017, but father had not provided any proof of seeking professional help and had not contacted the Department for assistance with obtaining counseling. The Department strongly recommended that father engage in therapy, anger management, domestic violence counseling, parenting classes, and have a mental health evaluation.
b) Potential visit in Canada
On July 19, 2018, the court entered a new attorney order directing the Department to report on the logistics of an in-person visit in Ontario, Canada; to secure passports for A.A. and Al.A.; and to secure a report from each child's therapist with a plan for how to overcome the impediments to an in-person visit with father, taking into account the children's strong desire not to go and whether the therapist recommended a face-to-face visit.
From July to November 2018, the Department reported on its efforts, but ultimately, no visit was possible because the relevant Canadian agency could not monitor visits for non-citizens. In addition to the logistical challenges of a face-to-face visit, the Department also provided updates on ongoing phone visits, as well as reports from the children's therapists.
In August 2018, father's counsel argued that the Department's reports were inadequate, complaining that while the Department had been ordered to provide reports from A.A. and Al.A.'s individual therapists with a plan to overcome impediments to an in-person visit with father, instead, the August 17, 2018 report showed that only Al.A. was in therapy and A.A. was not. In addition, the letter from Al.A.'s therapist did not address the question of in-person visits. The Department pointed out that Al.A.'s therapist described her as experiencing distress before, during, and after phone calls, and that individual sessions were appropriate. It was not clear what more the Department could do to describe the impediments to reunification. Regarding A.A., he had not met the medical necessity threshold for mental health services, but the Department would resubmit, along with a court order for therapy.
c) Renewed admonishment request, and A.A. addresses the court
At a hearing on August 17, 2018, father's counsel asked the court to admonish "any and all parties, attorneys, social worker, whoever" not to make derogatory comments about father around the children, referring to a statement in the visitation log, where A.A. reportedly asked father "why did you take [Ay.A.]? You are a kidnapper, you waited until mom died before you came around. The Court, my lawyer, my mom, my brother and family said you kidnapped [Ay.A.]. I don't like you and I don't want to live with you." Objecting to the implication that minor's counsel had made derogatory statements, minor's counsel offered his client to testify about the matter. The court emphasized that it was not going to restrict attorney-client communications, nor would it interfere with discussions among the siblings, but it would remind other family members to refrain from derogatory comments about anyone related to the case.
Minor's counsel asked if the court would permit A.A. to address the court, and A.A. communicated his strong feelings that he did not want to speak with father by phone or in person, nor did he want to stay with father. The court pointed out it wasn't currently in a position to make an informed decision either way, and that a face-to-face visit in a controlled situation would assist the court in determining whether the relationship could be salvaged or not.
On the question of the visit to Canada, maternal grandparents also asked to be designated "next of kin," apparently believing that they could prevent the children from traveling out of the United States. They declined to accompany the children on any visit, stating they did not want to further traumatize the children.
At the next hearing on August 24, 2018, father's counsel continued to press on moving forward with a visit in Canada, pointing out that the Department's reports did not indicate that the children would refuse to get on the flight. Responding to the court's request for input, minor's counsel stated that both children were opposed to a visit in Canada, and it was counsel's strong impression that they would refuse to get on the plane. The court ordered a progress report by September 7, 2018, but no significant progress had been made by that date. Ultimately, the Department reported that the child welfare agency in Canada was not able to monitor a visit between father and the children, because father was not a Canadian citizen.
6. Disposition hearing (October 2018 to March 2019)
The juvenile court conducted most of the disposition hearing over three separate dates: October 31, 2018, December 7, 2018, and March 22, 2019. It heard testimony from Dr. Lynn Ianni, A.A., Al.A., and the social worker. Dr. Ianni's July 2017 evaluation of father was filed with the court and admitted into evidence on October 31, 2018. The Department's exhibits were also admitted into evidence.
a) Dr. Ianni's testimony
Dr. Ianni testified as an expert in psychological evaluations about when and how she conducted an evaluation of father, interviewing him telephonically over four separate sessions, as well as one session with father's current wife, and one session with Ay.A., for a total of around five to six hours over the course of a month. She reviewed case materials, including reports from DCFS and court documents. From these materials, Dr. Ianni developed a focus on concerns alleged about father's propensity for aggression and violent behavior when encountering frustration and his relationship issues and parenting ability. She concluded that father was extremely motivated to reunify with his children. She acknowledged that father and his attorney had been the sources of information that she reviewed, and that she had not contacted any maternal relatives. Dr. Ianni knew that father had taken Ay.A. to Egypt, but could not recall that there were any charges of child abduction.
b) A.A.'s testimony
A.A. testified that he did not want to continue phone calls with father, explaining that it was interfering with the schedules of people like the social worker and his foster parents. No one had told him that information, he came up with it himself. A.A. said the last time he saw father was when he was a baby, and that his mother had told him father had kidnapped Ay.A., which made him angry at father. He denied hearing N.A., his foster parents, or maternal grandparents say anything negative about father.
c) Al.A.'s testimony
Al.A. testified that she refused to participate in phone calls with father, despite the social worker encouraging her to do so. She said she was scared to talk to father, because he was not there when her mother was sick and she (Al.A.) really needed him. Al.A. was also afraid father would take her the way he took Ay.A.
d) Social worker's testimony
Father called the social worker (Susan Johnson) to testify. Johnson had worked on the case for three years. Johnson testified that the day after mother passed away in March 2016, father called her seeking custody of the children. Another person at the Department was assigned to investigate the possibility of placement. Later on, it was decided at a CFT meeting that conjoint counseling was needed, but Johnson did not look for a conjoint therapist because minor's therapists had indicated minors were not ready for conjoint therapy. Regarding visitation, Johnson would gently encourage the children to speak on the phone, but she did not emphasize that the court had ordered visits. The children generally did not want to talk to father, and the therapy sessions allowed them to express how they were feeling. Johnson acknowledged that she had not communicated individual counseling goals to the children's therapists. Because father was in Egypt and the children had negative feelings towards him, she did not foresee them reunifying with father, even though that was the goal. She did not communicate directly with father, because she understood that he always wanted his attorney present.
e) Father travels to Los Angeles for in-person visitation
On February 2, 2019, father's attorney asked the court to continue the disposition hearing to the second week of March. The attorney explained that father was scheduled to testify and recently learned he would be able to travel to the United States after he received his passports and visa. The Department objected based on the how long disposition had already been delayed. The court continued the hearing to March 22, 2019, based on the anticipated benefit of live testimony and the enhanced possibility of reunification if father and the children were able to meet.
In March 2019, the social worker contacted the children and their foster parents to schedule an in-person visit with father in Los Angeles. A.A. had difficulty processing the prospect of a visit, becoming very emotional and losing his appetite. The visit took place on March 21, 2019, with A.A., Al.A., and father attending. A.A. was nervous but had a lot of questions for father. He asked what happened between father and mother. Father told A.A. that he had to return to Egypt for his studies. A.A. asked father why father could not just allow A.A. to remain where he was living and was happy. Father redirected the conversation to getting to know each other. Father brought food and gifts for the children, and the three communicated with Ay.A. over FaceTime. When father asked the children about future visits, they were hesitant. The social worker suggested they think about it and let her know at a later time. The social worker spoke with the children after the visit. A.A. was adamant that he wanted no further contact with father and expressed frustration that neither father nor the court was listening to him. Al.A. stated she would only go to visits with A.A., because he makes her feel safe. When the social worker pointed out she would be safe because the visits are monitored, Al.A. repeated that she would only feel safe if A.A. was present. The following day, A.A.'s caregivers said A.A. was crying and refused to eat after the visit, and had night terrors during the night, yelling and screaming in his sleep. A.A. told his foster parents that he does not want to visit father, but he does have a lot of questions he wants father to answer.
f) Counsel's arguments
Father's counsel argued first that the Department had not made reasonable efforts to prevent removal. Counsel argued that the Department contributed to delays during the past three years, first by not trying to find father, and then after the court granted father's Ansley motion, taking almost a full year to hold a CFT planning meeting in September 2017. Counsel argued that based on the social worker's testimony, the Department did not make reasonable efforts to prevent removal, because the children were not in individual counseling with a goal of conjoint counseling with father. Next, father's counsel argued the Department had not provided clear and convincing evidence that removal was required under section 361, subdivision (c), because the evidence of domestic violence, abuse, and neglect was too far removed in time to establish that the children would be in substantial danger of significant harm unless removed from father's custody. Father's counsel conceded that the "children are completely estranged from their father," but when mother died, father stepped up and immediately started the process to apply for a visa. The Department required father to complete classes, but they never ensured phone communication with the children. Father sought credit for classes he had already completed, and asked the court to order parent child interactive therapy without a prior recommendation from a therapist. Father also pointed out that the Department never recommended a domestic violence program, and because father had already completed anger management, an additional domestic violence program was not warranted, even though minor's counsel was requesting it. To counter any concerns that he may be a flight risk, father was willing to surrender his passport and identification during any visits, and father asked for the court to give the Department discretion to liberalize visits. Father also sought co-educational rights, noting that it appeared that A.A. was one or possibly two grade levels behind.
Minor's counsel asked the court to add a domestic violence program to father's case plan, based on sustained allegations that father physically abused N.A. and mother. Minor's counsel also emphasized father's history of taking matters into his own hands and disregarding court orders, as well as A.A.'s distress over visits, opining that the Department's efforts had been reasonable. The Department argued that because father left the country 10 years earlier, any estrangement between father and the children occurred well before the Department was involved with the family. The Department was diligent about referring the children to therapy and ensuring phone communication was made available. The Department argued in favor of the proposed case plan.
g) Court's disposition order
The court found clear and convincing evidence under section 361, subdivision (c), that there was substantial danger to the children's physical and emotional well-being if they were returned to father's home, and that there were no reasonable means to protect the children without removal. The court identified the bases for removal as (1) the sustained petition language, (2) the absence of any evidence the issues have been addressed despite the passage of time, and (3) the children were young or not yet born when father left and are currently estranged from father. The court found the Department made reasonable efforts to prevent removal, noting that the case against father was filed in 2016, when father had already been gone since 2009, and it was neither possible nor advisable for the Department to simply place the children with father in Egypt. The court found that the Department's efforts to coordinate visits were reasonable based on the totality of the circumstances, because immediate placement with father was not possible. The court ordered father to participate in a Department-approved domestic violence course, and gave father credit for programs he had already taken that satisfied the case plan. Going forward, the court ordered two hours of monitored visits per week. The court also set a six-month review hearing date and an additional hearing in 30 days to assess progress on visits and therapy.
The boilerplate text in the court's minute order for the hearing said the following regarding removal of the minor: "Dependency Court Order 415. [¶] . . . [¶] The Court finds by clear and convincing evidence, pursuant to Welfare and Institutions Code sections 361(a)(1), 361(c), 361(d), and 362(a), and additionally applying to noncustodial parent(s) . . . the constitutional and statutory safeguards available to custodial parents . . . [that] [i]t is reasonable and necessary to remove the child from the father . . . because there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being . . . of the child, and there are no reasonable means by which the child's physical health can be protected, without removing the child from the home and the care, custody, and control of that or those parent(s)/legal guardian(s). [¶] The court further finds that it would be detrimental to the safety, protection, or physical or emotional well-being . . . of the child to be returned to or placed in the home or the care, custody, and control of that or those parent(s)/legal guardian(s). [¶] The Department of Children and Family Services made reasonable efforts to prevent removal but there are no services available to prevent further detention."
DISCUSSION
Father contends the court's jurisdictional findings against him are not supported by substantial evidence and are insufficient as a matter of law to support dependency jurisdiction. He also contends the court's removal order was not supported by substantial evidence, and that the Department failed to demonstrate there were no reasonable alternatives to removal. The Department argues that there was sufficient evidence to support the court's order sustaining the allegations under section 300, subdivisions (a), (b), and (j), and the order removing minors from father's custody. Finally, father argues the juvenile court abused its discretion on certain interim orders.
Jurisdiction
Father contends there is insufficient evidence to support the court's decision to sustain allegations that A.A. and Al.A. were at substantial risk of serious physical harm based on domestic violence between father and mother, and father's neglect and physical abuse of N.A. In addition to challenging the sufficiency of the evidence in support of the petition allegations, father argues that as a matter of law, the events alleged are too distant in time to support the court's jurisdictional findings.
Considering the totality of the circumstances presented to the dependency court, we find substantial evidence to support jurisdiction under section 300, subdivisions (b)(1) and (j). The evidence supporting jurisdiction under subdivision (b)(1) includes evidence of domestic violence between mother and father and father's neglect of N.A. We need not examine the sufficiency of evidence supporting the remaining counts, including allegations of physical abuse under section 300, subdivisions (a) and (b), or domestic violence under subdivision (a). The passage of time since the relevant incidents did not diminish the risk that the children would suffer harm absent court supervision, because father was in Egypt during that time. Considering the totality of circumstances as permitted under subdivision (j), there is also substantial evidence to support the dependency jurisdiction over A.A. and Al.A., based on a substantial risk of abuse or neglect.
a. Standard of review and relevant law
We review jurisdictional orders for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) "In doing so, 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." (Ibid.) In reviewing the court's findings, we keep in mind that the purpose of a dependency proceeding is not to prosecute a parent, but rather to ensure the safety, protection, and physical and emotional well-being of children who are at risk of being physically, sexually, or emotionally abused or neglected. (§ 300.2; In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) "'The purpose of dependency proceedings is to prevent risk, not ignore it.' [Citation.]" (Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1104.) "'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.' [Citation.]" (In re I.J. (2013) 56 Cal.4th 766, 773.)
When, as is the case here, "'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 [jurisdictional finding] 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.' [Citation.]" (In re I.J., supra, 56 Cal.4th at p. 773.)
Dependency jurisdiction is warranted under subdivision (b) of section 300 when "[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 failure or inability of his or her parent or guardian to adequately supervise or protect the child." (§ 300, subd. (b)(1); In re R.T. (2017) 3 Cal.5th 622, 625.) Section 300, subdivision (b)(1) "authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child." (In re R.T., supra, at pp. 624, 627-633, 636-637, fn. 6 [disapproving In re Precious D. (2010) 189 Cal.App.4th 1251, and rejecting the reasoning requiring parental neglect for jurisdiction as set forth in In re Rocco M. (1991) 1 Cal.App.4th 814, 820].) To sustain an allegation based on risk of future harm to the child, that risk must be shown to exist at the time the court makes the jurisdictional finding, but the court need not wait until the child is seriously injured to assume jurisdiction. (In re Yolanda L., supra, 7 Cal.App.5th at p. 993.) "To establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]' [Citation.]" (In re D.L. (2018) 22 Cal.App.5th 1142, 1146; see In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384 ["[a] parent's '"[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue'"].)
The analysis of jurisdiction under subdivision (j) of section 300 is broader than under subdivision (b). "Subdivision (j) applies if (1) the child's sibling has been abused or neglected as defined in specified other subdivisions and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions. (§ 300, subd. (j).)" (In re I.J., supra, 56 Cal.4th at p. 774; see also In re D.B. (2018) 26 Cal.App.5th 320, 329-330.) "[S]ubdivision (j) includes a list of factors for the court to consider: 'The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.' (§ 300, subd. (j).)" (In re I.J., supra, 56 Cal.4th at p. 774, italics added.) Subdivision (j) "'thus allows the court to take into consideration factors that might not be determinative if the court were adjudicating a petition filed directly under one of those subdivisions. [¶] The broad language of subdivision (j) clearly indicates that the trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm, within the meaning of any of the subdivisions enumerated in subdivision (j). The provision thus accords the trial court greater latitude to exercise jurisdiction as to a child whose sibling has been found to have been abused than the court would have in the absence of that circumstance.' [Citation.]" (Ibid.)
In reviewing the exercise of jurisdiction under subdivision (j) of section 300, our Supreme Court has recognized that "the more severe the type of sibling abuse, the lower the required probability of the child's experiencing such abuse to conclude the child is at a substantial risk of abuse or neglect under section 300. If the sibling abuse is relatively minor, the court might reasonably find insubstantial a risk the child will be similarly abused; but as the abuse becomes more serious, it becomes more necessary to protect the child from even a relatively low probability of that abuse." (In re I.J., supra, 56 Cal.4th at p. 778.)
b. Substantial evidence of domestic violence and neglect
The petition allegations (counts a-2 and b-2) stated in full: "The children [N.], [A.] and [Al.]'s father [H.A.] has a history of engaging in violent physical and verbal altercations against the mother . . . in the presence of the children. On a prior occasion, the father choked the mother in the presence of the child [N.]. On prior occasions, the father struck the mother with the father's fists. On a prior occasion the father struck and slapped the mother, causing the mother to fall to the ground. On a prior occasion the father pushed the mother down a flight of stairs when the mother was pregnant with the child [Al.]. On prior occasions the mother sustained bruises and marks to the mother's body as a result of the father's violent conduct against the mother. On a prior occasion the father broke into the mother's home and chased the mother in the presence of the child [N.]. Such violent conduct of the father against the mother in the presence of the children endangers the children's physical health and safety, placing the children at risk of suffering serious physical harm, damage and danger."
The record includes substantial evidence that father was violent towards mother on multiple occasions between 2007 and 2009. The incident in 2007, where father broke down the door and mother called the police, is documented in a contemporaneous police report. Mother told a social worker about father's abusive behavior during an interview in 2012 and again in March of 2015. Maternal grandmother reported suspecting domestic violence between mother and father. In his interviews and testimony, N.A. provided details about father's acts of physical abuse towards mother, including instances where mother fled the home and stayed at a shelter while she was pregnant with Al.A., at which time N.A. would have around eight or nine years old. N.A. testified that during the time he was between six and eight years old, he witnessed at least 20 incidents of violence perpetrated by father against mother.
Father takes issue with some of the details of this evidence, but we decline father's invitation to reweigh that contrary evidence against the extensive record evidence that supports the trial court's finding. If supported by substantial evidence, the judgment or finding of the trier of fact must be upheld, even though substantial evidence may also exist that would support a contrary judgment, and even if the dependency court could have reached a different conclusion, had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
The petition allegation (counts b-3 and j-2) stated in full: "On a prior occasion, the children [N.], [A.] and [Al.]'s father [H.A.] placed the child [N.] in an endangering and detrimental situation in that the father left the child alone, in a parked vehicle, without appropriate parental supervision for an extended period of time. Such an endangering and detrimental situation established for the child [N.] by the father endangers the child's physical health and safety, placing the child [N.] and the child's sibling's [sic] [A.] and [Al.] at risk of suffering serious physical harm, damage and danger."
There is also substantial evidence of father's failure to adequately supervise N.A. when he left N.A. alone in the car at Walmart, when N.A. was only seven years old. N.A. and maternal grandmother both told the social worker about the incident, and the details were confirmed by a contemporaneous police report.
c. No need to consider allegations of physical abuse, or allegations under subdivision (a)
The petition allegations (counts a-1, b-1, and j-1) stated in full: "On prior occasions the children [N.], [A.] and [Al.]'s father [H.A.] physically abused the child [N.] by pinching the child's ears and throwing a case of water at the child's chest. On prior occasions the father forcefully pulled the child's ears, causing redness and ringing to the child's ears. On prior occasions the father threw buckets of water at the child and intentionally sprayed the child with water for extended periods of time. On prior occasions the father pushed the child [N.]. On a prior occasion the father forced the child [N.] to drink the father's saliva. On prior occasions the father threatened the child [N.] with physical harm. The father's physical abuse of the child endangers the child's physical health and safety, placing the child [N.] and the child's sibling [A.] and [Al.] at risk of suffering serious physical harm, damage, danger and physical abuse."
Father contends that the specific acts of physical abuse detailed in counts a-1, b-1, and j-1 cannot form the basis for dependency jurisdiction, because none of the incidents described by N.A. created a risk of causing "serious physical harm," and instead were reasonable disciplinary responses. (In re D.M. (2015) 242 Cal.App.4th 634, 642.)
"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 [trial] 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." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; see also In re Ashley B. (2011) 202 Cal.App.4th 968, 979 ["As long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate"].)
Because we find substantial evidence to support the jurisdictional findings based on father's acts of domestic violence and neglect, there is no need to consider whether dependency jurisdiction is warranted based on the factual details of counts a-1, b-1, and j-1. Similarly, there is no need to analyze whether the allegations and the evidence for count a-2, based on domestic violence, supports jurisdiction under subdivision (a) of section 300.
d. Current risk of harm based on past events
We reject father's argument that the events described in the sustained allegations are too remote in time to support a current jurisdictional finding. There was substantial evidence that before he left for Egypt in 2009, father had significant issues with anger and control. But for father's departure to Egypt, it is reasonable to infer from the evidence that father's controlling and violent behavior would have continued, placing A.A. and eventually Al.A. in substantial danger of encountering domestic violence, or being abused or neglected themselves. (In re E.B. (2010) 184 Cal.App.4th 568, 576; In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Such an inference is reasonable, and amply supported in the record, because of the absence of evidence that father did anything while in Egypt to address his behavior and, recently, father admitted and attempted to justify as warranted his violent and harmful actions. When asked in 2017 about the 2007 domestic violence incident, his response was "it is my home, I can bust the door." Ignoring his own responsibility as a result of this abusive behavior, father blamed mother and the Department for the current situation, where he lacks any meaningful connection with A.A. and Al.A. When the social worker suggested father take a different approach during visits, he became angry and was yelling at the social worker. It is undisputed that father left the country of his own accord, taking Ay.A. with him, thereby causing the estrangement from N.A. and A.A., who remained with mother. Moreover, despite the passage of time, the emotional toll on the children from father's behavior is clearly not too remote in time to support a finding of current risk to the children: based on his experiences before 2009, N.A. expressed fear in 2016 that if the children were sent to live with father in Egypt, they would be at risk of harm.
While father offered his own evidence attempting to show that he no longer posed a risk, arguing he was no longer violent and controlling, the court was free to consider the limited nature of such evidence in the context of the evidence presented by the Department. "[I]ssues of fact and credibility are the province of the trial court." (In re Heather A., supra, 52 Cal.App.4th at p. 193.) The pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) The record supports a finding that the children were at current risk of harm absent court supervision, and the fact the evidence mostly pertained to incidents from years earlier does not automatically make the court's determination speculative or unreasonable.
For example, father relies on the testimony of Ay.A., the child he took with him to Egypt, to support his arguments that he poses no risk to the other children. However, the juvenile court expressly found Ay.A.'s testimony not credible.
e. Totality of the circumstances and allegations under subdivision (j)
Even if we agreed with father's argument that the evidence of incidents pre-dating father's departure for Egypt in 2009 was insufficient to support jurisdictional findings under section 300, subdivision (b)(1), the same rationale does not apply to jurisdiction under subdivision (j), which permits the court to consider the "totality of the circumstances" when deciding whether minors are at risk of abuse or neglect, based on evidence that a sibling has been abused or neglected. (In re I.J., supra, 56 Cal.4th at p. 774; In re D.B., supra, 26 Cal.App.5th at pp. 329-330.) Here, the totality of the circumstances includes evidence of ongoing domestic violence between mother and father that continued until father's departure. In addition, there was evidence that father took Ay.A. to Egypt without first obtaining any custody order, and then mother obtained a warrant for father's arrest based on child abduction charges. Father, who had not been in contact with the children for a significant period of time, then sought custody of the children very shortly after mother's death, seeking to have them live with him in Egypt. Against that backdrop, there is no evidence that father ever acknowledged or took responsibility for the pain and emotional damage his departure and continued absence from the family caused A.A. or Al.A. Instead, after learning of mother's death, father simply set about having the warrant against him set aside and contacted the social worker, seeking to speak to the children and send them gifts. Father continued to blame others for the children's negative feelings towards him. Within weeks of mother's passing, father took steps to ensure that the child abduction charges against him were dismissed, and the warrant for his arrest withdrawn. Rather than acknowledging the distress and trauma suffered by the children, who reasonably believed father had kidnapped Ay.A. and was a fugitive in Egypt, father began his participation in this case by insisting the children be sent to live with him in Egypt because they are family.
It is neither unreasonable nor speculative for the court to infer from the timing and substance of father's actions that the children would be at risk of harm, and that court supervision was warranted, based on the evidence of prior domestic violence as well as father's domineering treatment of N.A. The circumstances, considered as a whole, constitute substantial evidence to support dependency jurisdiction under subdivision (j).
Removal order
Father contends there was insufficient evidence to support the court's removal order, and that the court incorrectly found that the Department made reasonable efforts to prevent removal.
1. Standard of review and relevant law
We review whether there was substantial evidence to support the court's removal order under the heightened standard of review set by our Supreme Court. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) When "presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the [appellate] court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Ibid.)
The decision to remove a child from a non-custodial parent is only authorized when a dependency court finds "clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent . . . to live with the child or otherwise exercise the parent's . . . right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's . . . physical custody." (§ 361, subd. (d)(1).) "A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent." (In re T.W. (2013) 214 Cal.App.4th 1154, 1163 [focus of the statute is on averting harm to the child].) "'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances." (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
The court made its removal finding under section 361, subdivision (c), rather than subdivision (d), which applies to removal from a noncustodial parent. Section 361, subdivision (c)(1), authorizes removal from a parent based on clear and convincing evidence of "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." Father does not contend on appeal that the court's reference to the wrong subdivision was prejudicial error.
The parties do not cite, nor have we found, any case law examining the showing required under subdivision (d), specifically on the question of removing a child from a parent with whom the child was not previously residing. Absent any such case law, we turn to the more developed case law examining section 361.2, under which a non-custodial parent may request custody of a child who has been removed from the custodial parent. (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345-351 [reviewing statutes authorizing dependency court to place restrictions on a parent's right to care, custody and control of a minor].) In In re Luke M. (2003) 107 Cal.App.4th 1412, 1417 (Luke M.), the father was a noncustodial, nonoffending father of four children who had moved to Ohio before the Department filed a dependency petition based on mother's substance abuse and father's inability to protect. The appellate court affirmed the juvenile court's finding that the children would suffer detriment if they were placed with father in Ohio under section 361.2. It found ample evidence that moving the children to Ohio would have a "devastating emotional impact" on them. (Id. at pp. 1426-1427.)
"[C]ourts have recognized that less drastic alternatives to removal may be available in a given case including returning a minor to parental custody under stringent conditions of supervision by the agency such as unannounced visits." (In re Hailey T. (2012) 212 Cal.App.4th 139, 148; see also In re Ashly F. (2014) 225 Cal.App.4th 803, 809 (Ashly F.)) The Department's disposition report must include, among other things, a "discussion of the reasonable efforts made to prevent or eliminate removal." (Cal. Rules of Court, rule 5.690(a)(1)(B)(i); Ashly F., at p. 809.) Before removing a child from parental custody, "[t]he court shall make a determination as to 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); Ashly F., at p. 810.) These requirements ensure that the "reasonable efforts" threshold under section 361 does not amount to "merely a hollow formula designed to achieve the result the [Department] seeks." (Ashly F., at p. 810.)
2. Substantial evidence supports the removal order
The court's stated reasons for removing A.A. and Al.A. from father's custody were (1) the sustained petition, (2) father's failure to address the issues in the sustained petition, and (3) father's departure from the United States in June 2009 and the resulting estrangement from A.A. and Al.A.
Even taking into account the clear and convincing burden of proof required for removal, we find substantial evidence to support the court's determination a removal order was warranted, based on evidence that the children were estranged from father and their emotional well-being would be in substantial danger if they were to live with father. (Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.) In Luke M., supra, 107 Cal.App.4th 1412, the father was non-offending and had moved to Ohio before the dependency case began. The children in that case had mixed feelings about moving to live with father, who spoke with them weekly and took action when he had difficulty reaching the children based on mother's action. (Id. at p. 1417.) While two of the four children initially expressed a desire to move and live with father, during the course of the case they changed their minds, clearly expressing a desire to remain in California with their other siblings. (Id. at pp. 1417-1418.) The appellate court rejected father's argument that there was insufficient evidence of detriment, noting that there was ample support for the juvenile court's determination that moving to Ohio to live with their father would have a "devastating emotional impact," because the minors "depended on their siblings for love, support, and security." (Id. at p. 1426.) Acknowledging that the decision could not rest on the children's preferences alone, the appellate court emphasized that the children's preferences were a permissible consideration. When considered together with the opinions of the social worker and a therapist that the children would suffer detriment if separated from their siblings, as well as the juvenile court's observations of testimony from the children, there was sufficient evidence to deny father's request for placement. (Id. at pp. 1426-1427.)
The facts established in the record before us demonstrate a level of emotional harm more serious than that faced by the children in Luke M. First, unlike the father in Luke M.—who was non-offending—the juvenile court in the case before us had already sustained multiple jurisdictional allegations against father. Although father disputes the circumstances of his departure in 2009 with Ay.A., there was substantial evidence that both A.A. and Al.A. believed that father had kidnapped their sibling Ay.A., and they harbored considerable fear that father might force them to move to Egypt as well. Therapists for both A.A. and Al.A. were working with the children to process their feelings. Al.A. had difficulties expressing her fear and anger. A.A. testified he did not want to have visits with father, and did not understand why he was being compelled to visit. Even the prospect of traveling to attend an in-person visit with father had a negative impact on the children's physical health. During the time frame in which the disposition hearing took place, father was not residing in Los Angeles. Apart from a brief period in Canada, he remained in Egypt. During most of the disposition hearing, both the court and the Department were evaluating the need for a removal order under a set of circumstances where father's only avenue for exercising his custodial rights was to move the children to Egypt to live with him. Father was unable to travel to the United States until sometime in the spring of 2019, so he was in Egypt when the children testified they did not want visits. While they were never asked their feelings about living with father in Los Angeles, the court could reasonably infer from the therapists' letters and the children's testimony about their fear and feelings of anger towards father, that absent a removal order, there was a high probability that the prospect of living with father would have a "devastating emotional impact," far worse than that found to be sufficient in Luke M., supra, 107 Cal.App.4th at page 1426.
Father acknowledges the danger to the children's emotional well-being in his reply brief, when he argues that the juvenile court should have continued the dispositional hearing and ordered the Department to provide individual counseling with the goal of assisting the children to process their feelings of estrangement, anger, and fear as to father, and moving towards conjoint therapy. We decline to consider father's belated argument on this point. (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 809 [points first raised in reply brief will not be considered]; In re S.B. (2004) 32 Cal.4th 1287, 1293 [forfeiture of issues not raised in the trial court].) The court made its jurisdictional findings in October 2017. Another year passed before the court began hearing testimony for disposition. It had already continued the hearing to allow father to travel to the United States after he was informed his visa had been approved. Father did not request an additional continuance at the March 22, 2019 hearing. Instead, he conceded that the children were completely estranged from father.
On the record before us, we find there was substantial evidence to support removal, even taking into account that the trial court's order was based on clear and convincing evidence.
3. Substantial evidence of reasonable efforts to prevent removal
The record reflects substantial evidence to support the finding that the Department made reasonable efforts to avoid removal, and there were no alternatives to removal would protect the children from substantial danger.
Father criticizes the Department's efforts as falling short, but he cites to case law that examines whether an agency has provided reasonable reunification services after removal order, not whether reasonable efforts were made to prevent removal. (See, e.g., In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973 [reversing finding of reasonable reunification efforts where minor refused to visit, but agency had not provided therapy to facilitate conjoint therapeutic visits]; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777 [absence or inadequacy of reunification plan precluded setting a hearing under section 366.26].)
Even if we were inclined to apply the same standards used in determining whether a social services agency has provided reasonable services in the context of reunification after a child is removed from parental custody and the family is working towards reunification, the law calls for reasonable services, not "the best" services "that might be provided in an ideal world." (In re T.W.-1 (2017) 9 Cal.App.5th 339, 346-347; see also Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 692 [restrictions on father's visitation were reasonable under the circumstances].)
Father also cites to Ashly F., supra, 225 Cal.App.4th at page 809, to argue that the Department's report lacked the requisite discussion of the reasonable efforts made to prevent removal. Given that there was sufficient evidence of the Department's efforts to facilitate telephonic visitation, as well as the possibility of travel to an in-person visit in Canada, we are unpersuaded by father's argument.
"It is the juvenile court's responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. [Citations.] To sustain this balance the child's social worker may be given responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur. [Citation.] In addition, the parents' interest in the care, custody and companionship of their children is not to be maintained at the child's expense; the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation. ([In re] Julie M. [(1999)] 69 Cal.App.4th [41,] 50-51 [child's aversion to visiting an abusive parent is proper factor for consideration in administering visitation so long as it is not the "the sole factor"].) [¶] Nonetheless, the power to decide whether any visitation occurs belongs to the court alone. [Citations.] When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine. [Citation.] The discretion to determine whether any visitation occurs at all 'must remain with the court, not social workers and therapists, and certainly not with the children.' [Citations.]" (In re S.H. (2003) 111 Cal.App.4th 310, 317-318, fns. omitted.)
The Department's efforts were reasonable under the circumstances, given that father resided out of the country. It communicated regularly with father, scheduling telephonic visitation and ensuring that the connection was made, even though the children generally refused to participate. Shortly after the juvenile court sustained the section 342 petition allegations against father in October 2017, the Department was engaged in CFT meetings that included father's attorney. One of the meetings lasted more than two hours. By July 2018, the children's therapists were still not recommending conjoint therapy, and the court ordered a report to identify the impediments, specifically noting that it was stopping short of ordering conjoint therapy to take place. When father moved to Canada for a period of time, it communicated with Canadian authorities about the possibility of a monitored in-person visit. All parties understood that for father to be in a position to gain custody of the children, the children would need therapeutic support and visitation would need to occur in a therapeutic setting. The Department worked with father's attorney to identify a therapist licensed in Los Angeles that could provide conjoint therapy, even though the children's therapists were cautioning against conjoint therapy. Later, when A.A. asked the court to stop pursuing a visit, the court emphasized the importance of an in-person visit for evaluating the nature of the relationship between father and son.
Father's reply brief argues that the juvenile court should have continued the dispositional hearing once again. As we have already discussed, father did not request an additional continuance at the March 22, 2019 hearing, and there is no evidence that a further delay would have resulted in a different decision.
Based on the unique circumstances of this case, we conclude there was substantial evidence to support the juvenile court's finding that the Department made reasonable efforts to prevent the need to order that the children should remain removed from father's custody.
No abuse of discretion in orders concerning visitation and case discussion
Father asserts what can only be described as a "catchall" contention on appeal, arguing that by denying various requests for orders during father's participation in the case, the juvenile court abused its discretion. We reject father's argument.
"'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
First, father argues it was beyond the bounds of reason for the trial court to refuse his request for an order preventing N.A. from discussing the case or case issues with A.A. or Al.A. Father made his initial request on February 9, 2017, the same day he entered a general denial to the section 342 petition. At that point in time, A.A. and Al.A. had only recently started phone visitation. As minor's counsel pointed out, the request was being made based on unsworn evidence, with father's counsel simply asserting that N.A. had an antagonistic relationship to father. Considering that the children were living in separate homes and still had a sibling relationship, we decline to hold that as a matter of law, when one sibling is distrustful of a parent involved in a dependency proceeding, the court must order that sibling from speaking negatively to the other siblings about that parent. Even if we were to assume that N.A.'s statements made it more difficult for father to establish or maintain communication with A.A. and Al.A., we find the court's decision to be within the bounds of reason, given that there was very little evidence that the children's ongoing reluctance to participate in phone visits with father was related solely to conversations with N.A.
Later in the proceedings, father's counsel renewed the request, this time asking for an admonishment for all parties—not just N.A.—to refrain from making derogatory comments about father in the children's presence. The court made the requested order, exempting discussions among the siblings. Father has not shown why the court's limited approach would constitute an abuse of discretion.
Father also makes a generalized argument that the court abused its discretion by taking a piecemeal approach, rather than entering a comprehensive set of orders designed to achieve visitation. Father does not rely on any caselaw, and we reject the notion that an appellate court can find an abuse of discretion based simply on the idea that the lower court should have taken a different approach to case management.
Inadequate record of denial of request to transfer venue
Father argues that when the court denied his request to transfer the case to Monterey Park, it abused its discretion, causing prejudice to father because he could not fully participate by telephone. Father cites to a portion of the record at the end of the jurisdictional hearing on July 18, 2017, where father's counsel refers to a prior request for the court to consider transferring the case to Monterey Park and states that the request was denied. The record on appeal does not contain a reporter's transcript of the request itself or the court's decision to deny the transfer.
For issues involving a substantial evidence or abuse of discretion standard of review, appellant "has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) There are myriad circumstances in which "appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided. [Citations.]" (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187 [listing numerous examples where courts have declined to reach the merits of an appellant's claims without a reporter's transcript or suitable substitute].)
Father cannot show an abuse of discretion when the record on appeal lacks the request and the order denying the request. We therefore reject father's argument that the court abused its discretion by refusing to transfer the case to Monterey Park.
DISPOSITION
The court's jurisdictional findings and dispositional orders are affirmed.
MOOR, J. We concur:
RUBIN, P.J.
KIM, J.