Opinion
B306881
04-21-2021
In re KHLOE M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. OSCAR M., Defendant and Appellant.
Vincent Uberti, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP03424A-B) APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa A. Brackelmanns, Juvenile Court Referee. Affirmed. Vincent Uberti, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
* * * * * *
Oscar M. (father) appeals from a dispositional order prohibiting contact between his female companion, Priscilla G., and his two children, Khloe M. (age nine) and Kendall M. (age six). Father argues that the order injuriously affects his relationship with his children and that the juvenile court abused its discretion in making the order.
Though we find father has standing to challenge the order, we conclude that the juvenile court did not abuse its discretion in making the order, which we affirm.
COMBINED FACTUAL AND PROCEDURAL HISTORY
The families
Father and Bianca C. (mother) are the parents of Khloe (born March 2012) and Kendall (born January 2015). The parents separated prior to Kendall's birth. Father reported not knowing about Kendall until mother initiated a request for her support. A DNA test revealed that father is Kendall's biological father. The parents equally share custody of Khloe and Kendall. However, at the time these proceedings were initiated, the children's primary residence was with mother.
Mother is not a party to this appeal.
Throughout the proceedings father has lived with his female companion, Priscilla, their two children (a two-year old and a newborn) and Priscilla's two minor children.
Mother has resided with her boyfriend Jonny H., and their child, Aria H. (born April 2019).
Aria was included in the proceedings below but is not a subject of this appeal.
Prior case history
Father and mother had a prior case history with the Los Angeles County Department of Children and Family Services (DCFS).
On December 31, 2012, DCFS received a referral alleging emotional and physical abuse of Khloe, then an infant, by mother and father. Mother reported that father was in the home, and threatening to hit her and the child. Mother disclosed to law enforcement that on December 9, 2012, she and father had an argument, which prompted her to take father's cell phone and lock herself in a bathroom. The baby was in a crib next to the bathroom door. Father pounded on the bathroom door until it broke, hitting mother in the face. Mother had a nasal contusion, a mark on the bridge of her nose and two black eyes. Father was arrested. Mother disclosed there had been two prior incidents of domestic violence that she had not reported. The allegation of physical abuse was deemed unfounded, but general neglect by father was substantiated. Khloe was detained from father and released to the care of mother.
On May 29, 2013, the juvenile court sustained a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b), on behalf of Khloe, based on the history of violence between mother and father in Khloe's presence. The court removed Khloe from father, placed her in mother's custody, and ordered services and a temporary restraining order.
All further statutory references are to the Welfare and Institutions Code.
On August 1, 2013, Khloe was removed from mother, and a section 387 petition was filed. On August 28, 2013, the juvenile court sustained an allegation that mother allowed father to have an overnight visit with Khloe in violation of the juvenile court's orders. On November 21, 2014, Khloe was returned to the parents. The juvenile court terminated jurisdiction over Khloe on May 22, 2015, with an order that the parents equally share custody of Khloe.
On May 18, 2018, DCFS received a referral on behalf of Khloe and Kendall due to allegations of emotional abuse by maternal aunt and mother's boyfriend, Jonny. On May 13, 2018, father and Priscilla delivered Khloe to mother's residence. The reporting party alleged that mother, maternal aunt, and Jonny attacked father and Priscilla. Khloe witnessed the incident and was crying and screaming. Priscilla called police and a report was filed, but no one was arrested. Father's eyes were bruised and Priscilla had bruises all over her body. Khloe confirmed the allegations. Video footage revealed that all parties were involved. The allegations were deemed inconclusive. The parties were ordered to go to the Downey Police Department for custody exchanges, with no third parties allowed.
Another referral was made on September 18, 2018. Khloe had visited father on the weekend from September 14, 2018, until September 16, 2018. Khloe later reported that Priscilla got mad at her, "If I do something wrong[,] she hits me." Khloe explained that if she prepared the baby bottle incorrectly Priscilla would get mad at her. Khloe reported that Priscilla would kick her legs, pull her hair, and lock her in father's closet. All this was done when father was not home. The reporting party did not see any marks or bruises on Khloe. Khloe reported that she did not tell father about these incidents because Priscilla told her she would get hit harder if she told father. Khloe later stated that she made up the allegations and that she did not like Priscilla, because she wanted father and mother to be in a relationship. DCFS recommended that the referral be closed as inconclusive.
The reporting party stated that father did not visit with Kendall because he had doubts that he was her father.
Current investigation
On April 4, 2019, DCFS received another referral regarding Khloe. It was reported that Khloe witnessed an incident between Jonny and mother, who was nine months pregnant. Jonny had mother in a chokehold, causing her to lose her breath for 7 to 8 seconds. Jonny bent over mother and slammed her on a piece of furniture. Mother then slipped and hurt her tailbone.
On April 9, 2019, DCFS interviewed Khloe, who disclosed that mother tried to take away Jonny's cell phone because he was texting other females. When mother grabbed the telephone, Jonny chased her. Mother hit her face on the cabinets in the living room. Jonny then pushed mother's face into the cabinets, causing mother to have a bruise on her nose. Jonny started to choke mother, and mother slipped and fell, but Jonny continued to choke her. Jonny yelled at Khloe, "I protected your mother from your father and what your father did to your mother wasn't right." Khloe hit Jonny in an attempt to have him leave mother alone. Jonny then got off mother, and mother took the children into the bedroom and locked the door.
Khloe stated that father lived in a big house with his mean girlfriend. Khloe did not like father's girlfriend because she had pulled Khloe's hair, dragged her upstairs, and locked her in the closet. Father's girlfriend only gave attention to her biological daughter, and father would take the girlfriend's side. Khloe only saw father on the weekends.
When interviewed, mother confirmed the story. Mother reported that Kendall and Khloe were present and crying throughout the entire incident. Khloe was begging Jonny to stop hurting mother. Mother sustained injuries to her neck and nose.
DCFS obtained the police report, which confirmed the facts as Khloe reported them. Jonny was arrested, and an emergency protective order was issued.
On May 28, 2019, DCFS spoke with father. DCFS informed father that Khloe had reported abusive behavior by Priscilla. Father denied the allegations and said that mother was putting things in Khloe's head that he would never allow to happen.
Section 300 petition and detention
On May 30, 2019, DCFS filed a petition on behalf of Khloe, Kendall and Aria pursuant to section 300, subdivisions (a), (b) and (j). The petition alleged that mother and her male companion, Jonny, had a history of engaging in violence in the children's presence. The petition further alleged that Priscilla physically abused Khloe, and father failed to protect Khloe and Kendall from risk of harm from Priscilla's abuse.
On May 31, 2019, the juvenile court held a detention hearing. The children were not detained from the parents. However, the court imposed a stay-away order prohibiting contact between Jonny and mother and the children. The court further ordered no corporal punishment and no contact between the children and Priscilla. Priscilla was not to be present during father's visits with the children.
Jurisdiction/ disposition report
When interviewed in June 2019, Khloe confirmed her report that during a visit to father's home, Priscilla had pulled her hair and swung her by the hair, dragged her upstairs and placed her in a closet. Priscilla had her niece stand in front of the closet door to prevent Khloe from leaving. Khloe stated that she told father about the incident, and father told her to stay away from Priscilla. Khloe reported that she did not feel protected while in the care of father. Khloe noted that Priscilla never abused Kendall, as Kendall did not visit father. Khloe felt safe in mother's care and did not want to live with father.
Mother was also interviewed in June 2019, at which time she reported that when the prior case closed, mother was awarded physical custody of Khloe, and father had weekend visits. Khloe had reported to mother that when Khloe visited father, Priscilla would scream at her, pull her hair, and lock her in the closet. Khloe saw a therapist for approximately three to four months following her report of physical abuse, but the visits ended. Khloe had not reported any recent abuse. Mother reported that Priscilla did not want Kendall around, so father would only pick up Khloe for visits. Mother indicated that she did not think the children were safe at father's home when Priscilla was present.
Father stated that the reason he did not visit with Kendall is that there were no custody orders regarding Kendall, which made it difficult for him to see her.
When father was interviewed, he stated that mother and Jonny were the parties causing problems with physical aggression. Priscilla sought a restraining order against mother following the violent incident in 2018. Regarding the allegations against Priscilla, father denied that Priscilla had ever been physically abusive toward Khloe or any other child. Father accused mother of putting things in Khloe's head.
Priscilla was interviewed on June 27, 2019. Priscilla described mother as aggressive, and explained that she was two and a half months pregnant when mother and maternal aunt attacked her in May 2018, resulting in a miscarriage. Priscilla said that Khloe was across the street during the attack. Priscilla produced a copy of an incident report dated May 13, 2018. She was able to obtain a restraining order against mother. Priscilla denied ever physically abusing Khloe or having locked her in the closet. Priscilla said mother was coaching Khloe to say these things. Priscilla added that Khloe enjoyed visiting with her and father and had even asked to live with them. Priscilla claimed Khloe told her that mother said Khloe did not have to listen when at father's home and could misbehave on purpose.
Jonny felt Khloe needed mental health services. She behaved in an aggressive manner. Jonny thought Khloe's behavior might stem from issues between mother and father.
The children were being referred for mental health assessments to determine the need for therapeutic services.
Interim hearings
The July 12, 2019 jurisdictional hearing was continued to September 26, 2019. At the hearing, the court admonished the parents not to speak to the children about the case at all. The children's counsel provided information that both parents had been guilty of talking about the other parent and stepparent. Counsel also presented "very concerning information" that on Father's Day, the children were present at the paternal grandparents' home with father and Priscilla, in violation of the court's order that the children be kept away from Priscilla. In addition, both father and Priscilla raised their voices at Khloe that day. The court restated its order that Priscilla was not to have contact with Khloe.
On September 6, 2019, a DCFS social worker visited with Khloe and paternal grandmother at a Yogurtland restaurant. Khloe reported that she was scared and having nightmares. She said she was afraid of father's girlfriend, Priscilla, who was mean to her and called her a "rat." Khloe indicated that she was not scared of mother.
On September 17, 2019, Khloe, Kendall and Aria were detained from mother pursuant to a removal order. DCFS had obtained information that mother and Jonny failed to abide by the court's order that Jonny stay away from mother and the children. A detention hearing was set for September 20, 2019. When the children were removed from mother, father requested that they be placed with him. The social worker informed mother that father suggested that Khloe and Kendall be placed in his care, and that he was willing to move into paternal grandparents' home. Mother expressed her concern that father would not be able to establish boundaries with Priscilla, and the children would not be comfortable with that arrangement. Mother also said that father had not seen or asked about Khloe since May 2019.
Although the children had not been legally removed from father, they had not been living with him as they lived primarily with mother.
The social worker visited father to inform him of the detention hearing set for September 20, 2019. Present in father's home were Priscilla and the two sons father shared with Priscilla. Priscilla asked if Khloe and Kendall would be placed in their home, and the social worker responded that such an arrangement would not be appropriate because Priscilla was not allowed to have contact with the girls. Father expressed that he would like to have a relationship with his daughters, but it was difficult due to his obligations. The social worker reminded father that he had custody of the children and encouraged father to visit them.
On September 20, 2019, the juvenile court made detention findings as to mother. The children remained released to father, but were placed in the home of maternal grandmother.
On September 26, 2019, the juvenile court signed an order allowing father to have overnight visits with Khloe and Kendall at his home if paternal grandmother was present and Priscilla was not left alone with the children.
The jurisdictional hearing was continued multiple times.
Interim reports
In a supplemental report dated November 22, 2019, DCFS reported that the children had not been having overnight visits with father. Instead, the children were spending alternate weekends at the paternal grandparents' home, and father would visit there for a few hours. The visits were inconsistent and maternal grandmother reported at least one violation during which paternal grandmother dropped the children off at father's home and left them there overnight.
In a February 10, 2020 last minute information for the court, DCFS reported that paternal grandmother picks the children up from maternal grandmother every other weekend. Paternal grandmother claimed there were no issues at father's home and things are normal, except that "there was an issue with Priscilla due to a comment Khloe made one time."
On February 10, 2020, the juvenile court renewed its prior order that the children not be left alone with Priscilla. DCFS was also to provide referrals for conjoint counseling for father and Khloe and to assist Khloe in enrolling in individual counseling.
In a last minute information for the court filed on March 26, 2020, DCFS reported that it was in the process of referring Khloe to individual counseling, and that once Khloe was assigned a therapist, the therapist could assess conjoint counseling with father. Khloe was crying and refusing to go to father's home or paternal grandmother's home for visits. Khloe repeatedly stated that she did not believe that she and Kendall were treated the same as father's other children, and that father asked them a lot of questions. Maternal grandmother reported that father and paternal grandmother did not call or ask for the girls for three weeks until February 29, 2020. Khloe did not want to go the next weekend for her birthday, nor did she want to go the following weekend. Paternal grandmother got angry and thereafter did not ask for the girls. Father also had not texted or called to ask for the girls.
When the social worker spoke with father on March 24, 2020, father reported that he had not seen the girls for 3 weeks because they did not want to visit. Father believed it was about money, since he was no longer paying child support. Father was interested in counseling for Khloe, because he felt that she needed help, and he was willing to participate in conjoint counseling if necessary. Since father had contact with a relative who tested positive for the coronavirus, he was not planning to have contact with the girls for two weeks.
Jurisdiction/ disposition hearing
The jurisdiction and disposition hearing was held on July 8, 2020. Father's attorney asked that the allegations involving Priscilla be dismissed, arguing that the 2018 incident with Priscilla that Khloe reported, had been previously investigated and deemed inconclusive. Father's counsel argued that it was a one-time allegation and there was no factual basis to support the allegations. The children's counsel objected to dismissal of the allegations pertaining to Priscilla's purported physical abuse of Khloe, arguing that Khloe had repeatedly and consistently told the story since 2018. Counsel explained, "Yes, this took place two years ago; however, Khloe has told the story consistently in 2018, in 2019, and yesterday when I spoke with her. So given the nature of the allegation, I would ask that it not be dismissed."
The juvenile court sustained the allegations pertaining to violent altercations between mother and Jonny and dismissed the allegations as to Priscilla.
The court released the children to both parents and ordered no contact between the children and Priscilla during father's visits. Father sought and was granted alternate weekend visits with the children. Father was ordered to have conjoint counseling with Khloe and Kendall.
Notice of appeal
On July 23, 2020, father filed a notice of appeal from the disposition hearing.
DISCUSSION
I. Standing
The parties dispute father's standing to challenge the dispositional order involving Priscilla. Only a person aggrieved by a court's decision has standing to appeal that decision. (In re K.C. (2011) 52 Cal.4th 231, 236.) An aggrieved party is "one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision." (Ibid.) A reviewing court should "liberally construe the issue of standing and resolve doubts in favor of the right to appeal." (In re L.Y.L (2002) 101 Cal.App.4th 942, 948.)
DCFS argues that father was not aggrieved by the court's no-contact order as to Priscilla. Because father did not take advantage of his right to see the children every other weekend, DCFS argues the no-contact order as to Priscilla did not affect father's visitation with the children. For example, sometimes father would visit the children for a few hours at the paternal grandparents' home; other times, he did not visit at all. Father provided other reasons for not seeing the children as much as he was allowed. In March 2020, Khloe was crying and refusing to go to either father's or the paternal grandparents' homes for visits. In late March 2020, father reported that he had not seen the children in three weeks because they did not want to go to his home. He speculated that it was because he was no longer paying child support.
Father argues that he is aggrieved by the juvenile court's no-contact order concerning Priscilla. He contends that the order prohibiting all contact between Priscilla and the children injuriously affects his parent-child relationship with the children. Father lives with Priscilla and their mutual children. The order, therefore, restricts father's contact with his daughters to locations outside his home or times when Priscilla is not present in their home. Father adds that the harm is not speculative because he has already reported difficulty visiting the children due to the court's restrictions.
Father cites In re Silvia R. (2008) 159 Cal.App.4th 337 (Silvia R.) as support for his argument. In Silvia R., a child was sexually abused by her stepfather and adult brother. Although the stepfather and brother were not parties to the case, the mother challenged the juvenile court's disposition order requiring the stepfather and brother to participate in sexual abuse counseling. (Id. at p. 341.) The Silvia R. court determined that mother had standing to obtain appellate review of the portions of the disposition order relating to the stepfather and brother, who were not parties and had not appeared in the matter. The court stated, "[t]hose orders are an integral part of Mother's disposition plan, and they directly impact her prospects for reunifying with Silvia." (Id. at p. 345.) Mother's failure to protect Silvia from the abuse was the issue to be addressed by the disposition plan, therefore mother necessarily had standing to challenge the "validity of the orders encompassed within her disposition plan." (Ibid.)
We agree with father that the situation before us is similar to that presented in Silvia R. The juvenile court's dispositional order as to Priscilla, a non-party, has a direct impact on father's visitation with his children. Thus, he is aggrieved by the order. Despite his inconsistent visitation in the past, he has the right to challenge the validity of the orders within the disposition plan as they affect his relationship with the children.
II. Dispositional order
A. Standard of review
Juvenile courts have "'broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion.'" (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.) A reviewing court will not reverse the lower's court's order "in the absence of a clear abuse of discretion." (Ibid.)
When making the dispositional order, the juvenile court is not limited to consideration of allegations in the petition, but should consider all the information contained in the social study of the child made by the assigned social worker. (§ 358, subd. (b)(1).) The court is expected to have before it "family history and behavior" contained in the reports. (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183.) These facts may be considered in making dispositional orders. (Ibid.)
Section 358, subdivision (b)(1) provides, in part, that "[b]efore determining the appropriate disposition, the court shall receive in evidence the social study of the child made by the social worker, any study or evaluation made by a child advocate appointed by the court, and other relevant and material evidence as may be offered . . . ."
Furthermore, the juvenile court need not limit its dispositional orders to address the sustained counts only. "At disposition, the juvenile court is not limited to the content of the sustained petition when it considers what dispositional orders would be in the best interests of the children." (In re Briana V. (2015) 236 Cal.App.4th 297, 311.)
B. No abuse of discretion occurred
The juvenile court's no-contact order between the children and Priscilla is not an abuse of its discretion under the circumstances of this case. Khloe's allegations of physical abuse by Priscilla were deemed inconclusive, but, with the exception of one retraction, Khloe has consistently reported the events that allegedly took place. As set forth above, the juvenile court is not limited to the content of the sustained petition when making its dispositional orders, but may also consider other reported behavior. (In re Rodger H., supra, 228 Cal.App.3d at p. 1183; In re Briana V., supra, 236 Cal.App.4th at p. 311.) The juvenile court was permitted to consider the single alleged instance of physical abuse, and its effect on Khloe, when making the dispositional order.
Further, the allegation of physical violence was not the only concern that Khloe reported about Priscilla. Khloe also reported emotional detriment stemming from negative interactions with Priscilla. On the occasion that Priscilla violated the no-contact order, both Priscilla and father raised their voices at Khloe when asking "why she was saying these things." And in September 2019, Khloe reported to a social worker that she was afraid of Priscilla, who was mean to her and called her a "rat." As recently as March 2020, Khloe refused to visit father because she felt that she and Kendall were not treated the same as the children father had with Priscilla. Khloe's fear of Priscilla was consistent throughout the proceedings and provided a reasonable basis for the no-contact order.
The cases cited by father are distinguishable. Father cites In re Drake M. (2012) 211 Cal.App.4th 754, 770, as an example of a case in which the dispositional order was an abuse of discretion because it failed to address the circumstances that led to dependency jurisdiction. In Drake M., the father used medical marijuana pursuant to a physician's recommendation and was ordered to take random drug tests and participate in drug counseling. (Ibid.) However, DCFS had "failed to show that father was unable to provide regular care for Drake" due to his substance abuse. (Id. at p. 764.) In addition, there were no allegations of abuse in the home. (Id. at p. 768.) Unlike Drake M., here there was evidence of abuse by Priscilla towards Khloe. Khloe consistently repeated her allegations of abuse at the hands of Priscilla. Further, Khloe consistently reported feeling afraid of and demeaned by Priscilla. Priscilla's behavior towards Khloe was not harmless.
Father also cites In re K.T. (2020) 49 Cal.App.5th 20, 25 (K.T.) for the proposition that it is an abuse of discretion for the juvenile court to make dispositional orders that are not necessary to protect the child from current risk. In K.T., the child was placed with the father at the dispositional hearing. The record contained uncontroverted evidence that after the baby was placed with him, the father provided appropriate care for her. His home was safe and well-supplied, and he had a nurturing, caring relationship with her. (Id. at p. 26.) Under those circumstances, the juvenile court's order that the father participate in parenting classes was unsupported. (Ibid.)
Unlike the situation in K.T., the juvenile court here had sufficient information to conclude that a no-contact order between Priscilla and the children was in the children's best interests. Considering the record as a whole, and the verbal, emotional and physical mistreatment that Khloe reportedly suffered in Priscilla's presence, the juvenile court did not abuse its discretion in ordering a no-contact order between Priscilla and the children.
DISPOSITION
The judgment is affirmed.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
HOFFSTADT