Opinion
G055484
05-18-2018
In re H.M., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.S., Defendant and Appellant.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17DP0280) OPINION Appeal from an order of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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INTRODUCTION
Appellant A.S. (Mother) is the mother of H.M., who was born in 2006 and taken into protective custody in March 2017 when he tested positive for benzodiazepine. A.M. (Father) is the father of H.M. The marriage of Mother and Father ended in dissolution, and their relationship has been contentious and hostile. H.M. suffers from cystic fibrosis. Mother and Father have disagreed on nearly every aspect of his care and have battled endlessly over custody.
Mother appeals from the juvenile court's dispositional order. She does not contest dependency jurisdiction. Father has not filed a brief on appeal. Orange County Social Services Agency (SSA) has filed a respondent's brief in support of the dispositional order.
Mother challenges several of the juvenile court's dispositional rulings and findings. Most significantly, Mother contends the court erred by ordering that custody of H.M. be vested with Father rather than ordering continued placement with Mother's parents (Maternal Grandparents). We conclude that substantial evidence supports the court's order vesting custody with Father.
Mother also contends the juvenile court erred by (1) not ordering an Evidence Code section 730 evaluation for Father; (2) finding that reasonable efforts had been made to prevent or eliminate the need for removal of H.M.; (3) not ordering the dependency petition be amended sua sponte to allege a count under Welfare and Institutions Code section 300, subdivision (c) for serious emotional damage; and (4) making a finding that Mother has been over-vigilant in her care of H.M. We conclude the juvenile court did not err and therefore affirm.
Code references are to the Welfare and Institutions Code unless otherwise indicated. Section 300, subdivision (b)(1) is cited as section 300(b)(1), section 300, subdivision (c) is cited as section 300(c), and section 360, subdivision (d) is cited as section 360(d).
FACTS AND PROCEDURAL HISTORY
I.
Prior Appeal and Background
In a prior nonpublished opinion arising out of the marital dissolution proceedings, In re Marriage of A.M.S. and A.C.M., Jr. (G051533, May 20, 2016), we reversed a family court order granting Father sole legal and physical custody of H.M. and permitting Father to move H.M.'s residence from Orange County to Lake Arrowhead. On our own motion, we take judicial notice of In re Marriage of A.M.S. and A.C.M., Jr., supra, G051533. (Evid. Code, §§ 452, subd. (d); 459, subds. (a), (b) & (c).)
In In re Marriage of A.M.S. and A.C.M., Jr., supra, G051533, we recounted the background facts leading to the custody dispute:
"Mother and Father married in 2005. Their son, H.M., was born in April 2006. Mother and Father separated in 2009, and Mother filed a petition for dissolution of marriage. In May 2012, a judgment of dissolution of marriage was entered following a contested trial. The judgment awarded Mother and Father joint legal and physical custody of H.M., with approximately equal parenting time. . . . [¶] The judgment stated that Mother and Father had shared custody of H.M. and neither would be characterized as the primary parent." (In re Marriage of A.M.S. and A.C.M., Jr., supra, G051533.)
"The source of tension between Mother and Father was medical care for H.M., who had been diagnosed with cystic fibrosis. H.M. was initially diagnosed as having asthma. Mother disbelieved that diagnosis and believed H.M.'s condition was more serious. She persisted (against Father's wishes) and proved to be correct. It took some time for Father to accept that H.M. had cystic fibrosis. Mother and Father have disagreed over treatment and approach toward care." (In re Marriage of A.M.S. and A.C.M., Jr., supra, G051533, fn. omitted.) After the appeal, Mother and Father resumed joint legal and physical custody of H.M.
II.
Protective Custody
H.M. was taken into protective custody on March 16, 2017 because he had tested positive for benzodiazepine. The Detention Report, under "Reason for Hearing," stated: "On or about March 9, 2017, [H.M.] ingested benzodiazepine as a toxicology screen was positive for benzodiaze A. [H.M.] had been in the care of [M]other. [¶] [M]other stated [H.M.] was coughing up some blood. [M]other took [H.M.] to CHOC Children's Hospital. [H.M.]'s father went to CHOC . . . and took H.M. out of the hospital against medical advice with the statement that he would take [H.M.] to Loma Linda Hospital. [¶] Father reported there was a long wait time at Loma Linda Hospital Emergency Department and he decided to take [H.M.] to another hospital where [H.M.] presented with the toxicology screen that was positive for Benzodiaze A. [¶] [Mother] has mental health issues and was hospitalized at Mission Hospital on March 16, 2017; [Mother] has been diagnosed with Bi[p]olar Disorder. [Mother] was placed on a Welfare and Institutions Code [section] 5150 hold and is currently hospitalized."
Children's Hospital of Orange County, which we shall refer to as CHOC.
How H.M. ingested benzodiazepine has never been determined. Father has a prescription for benzodiazepine; Mother does not. But H.M. had been visiting Mother for nearly a week when he was taken to CHOC. Mother has asserted that Father gave H.M. benzodiazepine to "set her up." Father has asserted that Mother (who has a lot of pills, according to H.M.) gave H.M. the benzodiazepine and was trying to poison him. The source of the benzodiazepine has been hotly contested. Father's conduct in removing H.M. from CHOC and taking him to Loma Linda Hospital also has become a point of contention.
Another incident reported in the Detention Report that has become a focal point of contention occurred on January 9, 2016 at a parking lot in Snow Valley. Father confronted a group of people who were smoking marijuana near his family. An altercation ensued. According to a sheriff's report, Father and his wife (Stepmother) were attacked. Stepmother went to the car, and after making sure the children were secured inside, retrieved a gun from the glove compartment and pointed the gun at the group who was attacking Father. Stepmother asked them to stop and leave Father alone. When none of them responded, Stepmother fired a round into the air and asked everyone to back away. The fighting did not stop, so Stepmother fired three or four warning shots into the air. The fighting stopped and security arrived. Stepmother said she retrieved the gun because she was fearful for her children's safety and had no intention of shooting anyone. Father and Stepmother were arrested. An investigation determined that Stepmother had acted in self-defense, and she was released. Father later was granted a plea of factual innocence.
The facts surrounding those three incidents—H.M.'s ingestion of benzodiazepine, Father removing H.M. from CHOC, and the Snow Valley gun-firing incident—are repeated throughout the various SSA reports. Details of the three incidents were fleshed out at the jurisdictional/dispositional hearing and will be addressed in full at that point in the opinion.
H.M. told the assigned social worker he felt safe with Father but "not really safe" with Mother because "she 'has a lot of pills.'" H.M. said that he knew he had been removed from his parents because "they can't stop fighting over me" and that his parents argue "'all the time' over him." He did not want to be taken to CHOC on March 9. He had overheard a doctor telling Father that H.M. had tested positive for a drug. H.M. believed that Mother put drugs in his food because he always felt sleepy after eating food she had prepared.
H.M. was placed with Maternal Grandparents. The juvenile court found that H.M. was at immediate risk of harm and that temporary removal from the parents was necessary to protect him from serious physical harm. On the day that H.M. was detained, Mother was hospitalized for mental health issues, placed on a section 5150 hold, and diagnosed with a psychiatric disorder.
Section 5150, subdivision (a) states, in relevant part: "When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment, [or] member of the attending staff, . . . of [such] a facility. . . may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in [such] a facility . . . ."
According to a report from San Bernardino County, in December 2015 allegations of general neglect of H.M. by Father and Stepmother were deemed unfounded. Allegations of general neglect of H.M. by Mother were substantiated "due to ongoing emotional distress [Mother]'s behavior has caused [H.M.]." H.M. did not want to visit Mother and would not take her telephone calls.
III.
The Juvenile Dependency Petition and Detention Hearing
The juvenile dependency petition, filed in March 2017, made four allegations under a single count for failure to protect (§ 300(b)(1)). An amended dependency petition, filed before the jurisdictional/dispositional hearing, made eight allegations under a single count of failure to protect. At the dispositional hearing, the court dismissed three of the allegations (b-1, b-3, and b-8), leaving the following five:
"b-2. [Mother] has unresolved mental health issues. On March 16, 2017, [Mother] was placed on a [section] 5150 hold and hospitalized for psychiatric issues. [M]other has been hospitalized for psychiatric related issues on at least four occasions.
"[¶] . . . [¶]
"b-4. On December 3, 2015, allegations of general neglect to [H.M.] by [Mother] were investigated by San Bernardino County Child Protective Services. The allegations were substantiated due to ongoing emotional distress that [M]other's behavior caused [H.M.]. The referral noted that [H.M.] was having difficulty focusing at school, and that [M]other had been informed that her behavior negatively affects [H.M.].
"b-5. [Mother] and [Father] share joint custody of [H.M.]. [H.M.] has been the subject of a protracted and contentious child custody dispute, and has been the subject of multiple child abuse referrals. On March 16, 2017, the family law court found [H.M.]'s health was placed at risk due to the parents' actions, temporarily removed [H.M.] from their care, placed [H.M.] in protective custody, and ordered the parents to drug test. Mother tested negative for drugs. Father is prescribed benzodiazepine for anxiety and tested positive only for benzodiazepines.
"b-6. [Mother] and [Father] share joint custody of [H.M.], who is diagnosed with cystic fibrosis. On March 9, 2017, while at Mountains Community Hospital, [H.M.] was tested for drugs at the request of [Father]. [H.M.] tested positive for benzodiazepines, although [H.M.] is not prescribed any medication that would test positive for benzodiazepines. Each parent had access to [H.M.] in the hours prior to the positive drug test, and each parent states the other parent is responsible for [H.M.]'s positive drug test. In testing positive for benzodiazepine, [H.M.] has suffered a detrimental condition pursuant to . . . section 355.1, that would not normally occur except for the result of the unreasonable or neglectful acts of omissions of either parent.
"b-7. On March 19, 2017, [Mother] took [H.M.], who suffers from cystic fibrosis, to [CHOC] for medical assessment and treatment. [Father] removed [H.M.] from CHOC and transported [H.M.] to Loma Linda Hospital. [Father] reported that due to the wait time at the emergency room at Loma Linda Hospital, he then transported [H.M.] to Mountains Community Hospital. A delay in necessary medical treatment of [H.M.] resulted from [Father]'s conduct."
An SSA addendum report dated March 21, 2017 included information about the extreme level of hostility between Mother and Father. At the detention hearing, conducted on March 21 and 22, 2017, the juvenile court ordered H.M. detained under SSA's protective custody. Mother was at a treatment center and not present in court. Father was granted six hours of monitored visits per week, and Mother was granted two hours of monitored visits per week. H.M. was granted two monitored telephone calls per week with Father.
IV.
Events From the Detention Hearing to the
Jurisdictional/Dispositional Hearing
In the Jurisdiction/Disposition Report dated April 18, 2017, SSA requested the juvenile court order Evidence Code section 730 evaluations for Mother and Father. H.M. remained with Maternal Grandparents. Both Mother and Father believed that was a good placement. H.M. was comfortable with Maternal Grandparents but missed Father, Stepmother, and his siblings, and wanted to return to their home.
H.M. had requested daily telephone contact with Father and appeared happy to see him. Mother visited H.M. and was very happy to see him, but H.M. did not want to interact with her. The social worker encouraged H.M. to visit Mother, but would not insist on the visits until he appeared to be more comfortable.
Mother denied using benzodiazepine and denied giving it to H.M. She reported being diagnosed with bipolar disorder and had stabilized. After H.M. was born, she suffered from postpartum depression and admitted herself to a hospital. Mother denied using any illegal drugs, and kept her medication out of H.M.'s reach. She reported a history of domestic violence with Father.
The jurisdiction/disposition report devoted six pages to the many law enforcement reports relating to the custody battle over H.M. From 2009 through March 2017 there were some 25 reports from the Orange County Sheriff's Department relating to custody disputes between Mother and Father.
Maternal Grandparents had known H.M. his entire life and cared for him at times when Mother and Father were separated. The relationship between Maternal Grandparents and H.M. was "loving, positive and healthy" and SSA reported they "understand [H.M.]'s medical needs and are trained to care for [H.M.]'s ongoing health concerns." Maternal Grandparents' home was appropriate and SSA had no concerns about it. Maternal Grandparents had adequate financial resources to meet H.M.'s needs. They supported reunification of H.M. with either Mother or Father and "hope[d] for a quick resolution for the benefit of [H.M.]." If reunification were unsuccessful, Maternal Grandparents were willing to provide H.M. a permanent home.
Maternal Grandmother told the assigned social worker that H.M. will only have peace if he is not placed with either Mother or Father. Maternal Grandmother said that Mother and Father "are more concerned with getting one over on each other than they are with [H.M.]," expressed frustration with both Mother and Father, and predicted they will never get along. SSA was concerned Father was discussing the case with H.M. and questioning him inappropriately during monitored telephone calls. Father and Stepmother did not believe talking about visitation was included in the prohibition to not talk about the case.
H.M. continued to do well in Maternal Grandparents' home and visited both Mother and Father. He wanted to visit Mother only once per week. H.M. talked to both Mother and Father by telephone. Text messages between Mother and Father through "Our Family Wizard" reflect a high level of acrimony.
In August 2017, H.M. was medically cleared to play football and was excited.
Mother agreed to an Evidence Code section 730 evaluation. She told the social worker that Father was on a mission to have H.M. returned to him. Mother believed Maternal Grandparents were the best placement for H.M.
Mother's therapist told the social worker that Mother was doing well in therapy. The therapist was working with Mother on developing coping mechanisms and making sure she did not have to deal with Father one on one. The therapist thought that Mother did not appear to be bipolar and her symptoms seemed more like postpartum depression.
V.
Jurisdictional/Dispositional Hearing
The jurisdictional/dispositional hearing was conducted over 10 days from August 7 to September 13, 2017. Six witnesses, including H.M., testified. The detention report, the jurisdiction/disposition report, and the addendum reports dated March 21, April 18, May 4 and 25, June 8 and 13, July 10, and August 1 and 21, 2017, were received into evidence. A. H.M.
H.M. testified in chambers outside the presence of Mother and Father. He was 11 years old and in the sixth grade. He missed living with his brothers (ages nine and four) and his sister (age two). He liked living with his siblings, Father, and Stepmother, whom he called "Mom Jen." He got A's and B's in school, and had friends at school, but wanted to go to school "with my dad in the mountains." H.M. also missed his cousins, who were ages 10 and 12. H.M. was sad because of the topics of questioning.
Father would take H.M. to the doctor when he was sick and made sure he did all of his breathing exercises. Sometimes H.M. never got to speak with Father, which made H.M. sad. H.M. would like to talk to Father every day. H.M.'s visits with Father were "good" and H.M. would like more of them.
H.M. would feel sleepy after eating at Mother's house. He did not feel sleepy after eating at Father's house. H.M. would "get more sick" at Mother's house. Mother told H.M. that he was "sick a lot" and would always try to take him to see the doctor. He would never get sick while staying with Father or with Maternal Grandparents. H.M. was not scared of Mother, Father, or Stepmother.
H.M. did not like visits with Mother and wanted more visits with Father. H.M. said that visits with Mother were "just boring" and he would "rather see all my family." H.M. was asked how often he would like to visit Mother if he were to live with Father. H.M. answered that he did not want to visit Mother.
At some point during his testimony, H.M. became extremely upset and started to cry. The judge asked all of the adults, including the reporter, to leave. The judge took off her robe and casually spoke with H.M. about what he had been doing that summer. The judge described H.M. as "extremely tensed and stressed." Once H.M. calmed down, the judge invited the attorneys and court reporter back into chambers. B. Mother
Mother testified that in 2009 H.M. lived with her, and Father had monitored visits. Mother and Father had separated in 2009 due to domestic violence perpetrated by Father. He was arrested and a restraining order was issued against him.
As an infant, H.M. was diagnosed as having asthma. Father did not believe H.M. had any pulmonary issues and would not give H.M. his breathing treatments and medication. In 2013, Mother became concerned about H.M.'s breathing. H.M. was extremely ill and choking on mucus. Father was dismissive of Mother's concerns and claimed Mother had Munchausen Syndrome by Proxy. Mother obtained a court order for H.M. to be seen by Dr. Christina Schwindt.
In May 2013, Dr. Schwindt diagnosed H.M. as having cystic fibrosis. H.M. is treated by three pulmonologists—Dr. Zacharia Reda at CHOC, and Drs. Joshi and Otsuka at Loma Linda Hospital. From May 2013 until sometime in 2014, CHOC, which is world-renowned for cystic fibrosis treatment, was H.M.'s primary hospital for cystic fibrosis. Due to several altercations at CHOC involving Father and Stepmother, CHOC declined to continue treating H.M. In June 2014, Loma Linda Hospital became H.M.'s primary hospital.
At some point in late 2014, H.M. lived with Father on weekdays and with Mother on weekends. Mother testified that H.M. would be ill when he arrived at her house and claimed that was because Father would not put H.M. on "sick protocol" (i.e., increasing time on a breathing vest and upping medications) when he got a cold. Mother was concerned over how Father cares for H.M. due to the number of times H.M. has arrived ill at her home.
In March 2017, H.M. coughed up blood in his mucus. H.M. had been sick for about a week because, according to Mother, Father had not implemented H.M.'s sick protocol. Mother sent photographs of the mucus and blood coughed up by H.M. to Dr. Joshi, who said that H.M. had an infection and needed to be admitted to a hospital. Dr. Joshi approved taking H.M. to CHOC to be treated by Dr. Reda. Mother believed she took H.M. to CHOC on March 9, 2017. Mother waited a few days to take H.M. to CHOC because Loma Linda Hospital had told her to put him on sick protocol and had placed him on antibiotics.
Mother has never given H.M. benzodiazepine and has never had any in her possession. Mother testified that H.M. must have gotten the benzodiazepine in his system from Father. Mother does not have access to benzodiazepine, and "would never drug my child."
Mother testified that after H.M.'s birth she was diagnosed as bipolar, for which she takes lithium. After giving birth to H.M., Mother suffered from postpartum depression and was hospitalized for it. Mother testified that her psychologist believes Mother might not be bipolar and her mental health issues have been caused by stress.
As Dr. Joshi instructed, Mother took H.M. to the emergency department at CHOC on March 9. While she was waiting for H.M.'s chest X-ray, Father and Stepmother arrived and "made a big stink out of it." Father claimed he had a bed ready for H.M. at Loma Linda Hospital and removed H.M. from his room at CHOC. Staff at CHOC tried to get Father to leave H.M. so they could finish treating him, but Father refused and left with H.M.
Mother received an e-mail from Father at 2:00 a.m. stating he was going to contact Loma Linda Hospital and update her. Father never did so. Mother called Loma Linda Hospital but "never got any responses."
Mother testified she was concerned that Father never implemented sick protocol "[b]ecause every time [H.M.] gets sick, and you don't implement sick protocol right away, you're taking years off of his life because every infection eats his lungs and that cuts off his lifespan." Since H.M. was placed with Maternal Grandparents, his health has been excellent. Mother testified, "If [H.M.] is taken care of properly, he doesn't get sick." Mother had concerns if H.M. were returned to Father because Father did not follow court orders, missed visits, and "tends to be hostile."
Mother testified that another domestic violence incident occurred in December 2015, when she went to pick up H.M. at Father's home. Father and Stepmother blocked Mother's car and beat on her car windows. Law enforcement was called. Mother was not able to see H.M. for 10 months. The district attorney's office assisted Mother by filing a recovery warrant in July 2016, and Mother's visitation with H.M. resumed.
On March 17, 2017, the day after H.M. was detained, Mother registered herself at Mission Hospital because she was not feeling well and was "stressed from everything that was going on." The label "5150" did not come from her, "they labeled me whatever they labeled me." C. Father
Father was awarded full physical and legal custody of H.M. in July 2012. The Court of Appeal reversed the custody order, and in August 2016, custody reverted back to 50/50. H.M. lived with Father from Monday to Saturday morning, when Father would take H.M. to Mother's home. Later, the custody arrangement was changed so that Father would return H.M. to Mother on Friday evenings.
When Father dropped off H.M. at Mother's house on the evening of Friday, March 3, 2017, H.M. showed no signs of being sick and had spent the previous day snowboarding. On Sunday, March 5, as Father was driving to Mother's house to pick up H.M., Father received a Family Wizard notice and e-mail from Mother stating that H.M. had been moved to sick protocol. After discussing the matter with Mother, Father decided it would be best for H.M. to stay with Mother a few extra days for sick protocol treatments and so "[s]he could spend more time with him." On Thursday, March 9, at about 1:00 p.m., Father received a call from the charge nurse at Loma Linda Hospital telling him that H.M. was sick and was going to be admitted. Father went immediately to Loma Linda Hospital, where he was told that H.M. had vomited blood and that Mother was bringing H.M. there to be admitted for treatment. Father was not pleased when he learned that Mother was taking H.M. to CHOC because "there's a court order stating that [H.M.] is supposed to be treated only at Loma Linda [Hospital]" and Father had been told that Loma Linda Hospital was processing a bed for H.M.
Father testified that the social worker and the charge nurse at Loma Linda Hospital told him "to get [H.M.] and protect him at all cost because they were not hearing from [Mother]." Father interpreted their statement to mean he needed to remove H.M. from CHOC and bring him to Loma Linda Hospital.
Father went to CHOC and spoke with the charge nurse, who said that so far the hospital had only checked H.M.'s vital signs, which were fine. Father walked into a room in which H.M. was seated in a chair. Father testified: "[W]hen I walked in, [H.M.] jumped out of the chair and grabbed me and said, 'Pa, take me out of here. Get me out of here. I'm not sick.'" As Father walked out with H.M., Mother grabbed H.M. Father asked her to take her hands off H.M. Mother assaulted Stepmother. Security arrived and told Mother she "needed to back up." Father told Mother he had been instructed by the social worker at Loma Linda Hospital to remove H.M. because the social worker had had no contact with Mother for several hours. Father also was concerned that H.M. would be subjected to unnecessary medical procedures because Mother exaggerated his condition.
Father did not consult a physician before removing H.M. from CHOC because Father was not sure whether H.M. was sick. Father conceded it would have been prudent for him to have consulted a medical professional before removing H.M. from CHOC. He removed H.M. from CHOC because "I was instructed to take him to his team of treating physicians." Father did not ask anybody at CHOC if they had contacted Loma Linda Hospital. When asked why he did not do so, Father testified, "It was just the emotions, I guess, going."
Father took H.M. to Loma Linda Hospital. A bed was not ready for H.M. there, and Father believed the hospital had stopped the process of making a bed ready for H.M. on learning he had been taken to CHOC. They waited three hours at Loma Linda Hospital. H.M. was not coughing or coughing up mucus, did not have a runny nose, and was not wheezing. After being told it was going to be another four or five hours of waiting, Father decided to take H.M. to the emergency room at Mountains Community Hospital in Lake Arrowhead. There, H.M. was seen by an emergency room treating physician, who concluded he was fine.
When Father first went to Loma Linda Hospital, before he removed H.M. from CHOC, he had asked that H.M. be given a toxicology screen because Father "just had a bad feeling." Father testified that he had noticed that on drives home, after picking up H.M. from Mother's house, H.M. was lethargic and very tired. When he was told that H.M. had been throwing up blood, Father "felt like there was more than meets the eye."
Father denied ever giving H.M. benzodiazepine. Father is prescribed Xanax but keeps his medications in a locked dresser drawer. Father suspected foul play by Mother because H.M. had never before thrown up blood and is "always sick" when he is with her. Father testified he believed Mother gave H.M. benzodiazepine because "[h]e was with her for six days and it was in her system."
Father testified that he "messed up" by removing H.M. from CHOC. Father believed that Mother always exaggerated H.M.'s symptoms. When Father arrived at CHOC and was told that H.M. was fine, Father "just wanted to get him back to Loma Linda [Hospital] to the safe zone." Father testified, "I know I did wrong."
When asked what he could work on to better care for H.M., Father testified: "Could it be healthier if [Mother] and I could coparent? Of course. I agree. But there's been allegation after allegation, CPS [Child Protective Services] after CPS from [Mother] towards myself. [¶] Me being dragged into [f]amily [c]ourt at least 90 times. So I don't see how it's possible to coparent when you're constantly under the eye of allegations. [¶] I wish we could. I wish there could be some sort of way to figure this out." Father later testified, "I think realistically both of us now, seeing through all the ups and downs, having [H.M.] taken away, I think that now that it's escalated to this, I think that really I think we both have to look within and just make some changes."
Father testified the Snow Valley incident occurred in a parking lot where he, Stepmother, H.M., and his three other children were eating sandwiches. About one and a half car lengths away, a group of two men and two women were smoking marijuana. The smoke was blowing downwind onto Father and his family. Father asked the people smoking marijuana to move on. They became upset and told Father that if he were in Compton that would "get [him] killed." They left when Father said he was going to call security. Father contacted security, which arrived and told him that he and his family could stay. Security then spoke with the four people smoking marijuana.
A group of seven men and three women approached Father as he was packing up the car to leave. Stepmother and the children were inside the car. Father was just about to shut the tailgate when the 10 people approached him and boxed him into the back of the car. All 10 people were yelling at Father, who kept telling them, "We don't want any problems." Stepmother got out of the car, walked over to Father's left side, and said, "Why don't you leave my husband alone." The three women attacked Stepmother and the seven men assaulted Father. At that point, Stepmother fired gunshots. The gun had come from inside the car. Father did not know the gun or magazines were there because it was Stepmother's car. Father testified he "would never drive around with a loaded firearm in the car. It would be stored appropriately." Father believed it was safe for a child to be in a car with a firearm if it were appropriately locked and stored, even if one of the adults did not know a gun was there.
Police officers arrived and arrested Father. The 10 people who had confronted Father were African-American and the police report indicated Father used racial slurs, which Father denied making. He testified he had done nothing to escalate the situation, "[a]nd neither did the court." Father was granted a factual plea of innocence by the court and the records of the incident were ordered destroyed. Father agreed that shooting a gun into the air is not safe, but did not believe he had acted negligently. Father has guns at his home, and all of them are licensed and locked up. H.M. and the older of his two brothers are trained in firearm use and safety.
When H.M. was in the fourth grade, Mother made a false allegation that Father was not tending to H.M.'s medical protocol. A representative of child protective services went to H.M.'s school and interviewed H.M. That evening, H.M. was upset because he believed that child protective services was going to take him away from Father. Child protective services conducted an inspection of Father's home and concluded Mother's allegation was unfounded.
After child protective services interviewed H.M., there was an eight-month period in which H.M. refused to visit Mother and refused her telephone calls. During this period, when Mother showed up at Father's house to pick up H.M. for visits, H.M. would refuse to go with her. Father would encourage H.M. to go out and speak with Mother, but H.M. would refuse. In advance of the exchanges, Mother always contacted law enforcement. Law enforcement officers would appear at every exchange and encourage H.M. to go with Mother. Despite Father's best efforts, Father was not able to get H.M. to agree to visit Mother. Father believed that H.M. did not want to visit Mother because of what happened when child protective services showed up at H.M.'s school.
At the end of the eight-month period, Mother made an allegation that Father had "fled" with H.M. and went out of state. As a result, the district attorney's office issued a custodial order for H.M. Mother's allegation was false. H.M. resumed visits with Mother with Father transporting him each way.
Father missed work many times and lost two jobs because of the number of times he had to go to family court.
For the six-month period ending in March 2017, H.M. never had a sick protocol while in Father's care. During the same six-month period, H.M. was under sick protocol "a handful of times" while visiting Mother. H.M. did well in school while he was in Father's custody. While in Mother's custody, H.M. missed a large amount of school, was behind on his school work, and was "subdued," "sad" and "withdrawn."
To Father's knowledge, Mother had been placed on an involuntary section 5150 hold four times. If H.M. was not placed with Father, then Father supported placing H.M. with Maternal Grandparents because "he's safer there than he would be anywhere else." Father was not pleased that Maternal Grandparents had made up lies about him, but believed their home was "probably the best place for [H.M.]"
Father denied interfering with H.M.'s relationship with Mother and believed H.M. needed to have Mother in his life. Father denied having an anger management problem. He completed an anger management program in 2008, but had never enrolled in a domestic violence program. Father denied Mother's claim that he and Stepmother pinned Mother in her car so she could not leave. When he and Mother separated in 2009, he was arrested for domestic violence, but the court "ruled it . . . did not happen." Father has never committed acts of domestic violence against Stepmother. Father denied asking H.M. to secretly record H.M.'s conjoint therapy sessions with Mother. Father denied saying anything bad about Mother in front of H.M. and denied telling H.M. that Mother had tried to kill him. Father is willing to work with Mother and has taken H.M. to every family reunification appointment. D. Christina Deaton
Christina Deaton is a licensed marriage and family therapist. She first met with Father in May 2017 and had had eight 50-minute sessions with him. Father had told Deaton he sought her services because he was struggling emotionally in dealing with the custody dispute.
During the first session, Father told Deaton that H.M. had been placed in protective custody "because he tested positive for a downer." Father told Deaton that Loma Linda Hospital had told him to remove H.M. from CHOC "with the understanding that Loma Linda [Hospital] would be ready to admit [H.M.] when they returned." Father told Deaton that if the same situation were to arise again, he would leave H.M. at CHOC long enough to have him tested for drugs. Father believed if had he done that in this case, H.M. would not have been removed because there would have been no doubt about how H.M. tested positive for benzodiazepine. Father regretted his behavior at that time because he lost five months with H.M. as a result. Father did not tell Deaton that he had removed H.M. from CHOC without a doctor's approval.
Deaton's treatment plan for Father was to decrease Father's sad moods from three times a week to once a week and reduce hypervigilance (anxiety) from five times a month to once a month. Father's sad moods were caused by H.M.'s removal. Deaton and Father had not discussed Mother's mental health issues, domestic violence allegations, coparenting, or anger management. Father had discussed with Deaton the Snow Valley incident and attributed the onset of his hypervigilance to it. Deaton reported that Father had made progress in decreasing his sad moods and anxiety.
When Deaton asked Father whether he had ever been convicted of a crime, he denied any criminal history. Father also denied any history of domestic violence. Deaton would have liked to have known about Father's criminal history, including his restraining order, prior to testifying in court. Deaton had not seen the dependency petition or any social worker or police reports. The social worker had asked Deaton about Father's progress in therapy but did not discuss the dependency case with her.
Deaton diagnosed Father as having an adjustment disorder, which means that "once the stressor is removed from someone's life, the symptoms resolve themselves and they no longer, usually, need treatment." She believed that "once the stressor of having [H.M.] out of his home is removed, [Father]'s symptoms will resolve and he won't need treatment." E. Maureen Naganuma
Maureen Naganuma is employed by the County of Orange as a senior social worker. She was the assigned social worker in this matter. H.M. was ordered into protective custody because he tested positive for benzodiazepine and because Mother and Father had an ongoing conflictual relationship.
Naganuma discussed with Mother her mental health issues. Naganuma believed Mother has an unresolved mental health issue because she has been diagnosed with bipolar disorder. Naganuma did not have medical records from Mother's section 5150 holds because Mother would not sign records releases. Naganuma believed that Mother has not been completely forthcoming about her mental health issues and was relying on her word that she bipolar disorder. Mother's therapist had told Naganuma that Mother did not appear to be bipolar. A nurse at the treatment center where Mother spent one section 5150 hold told Naganuma that Mother had been diagnosed as having a psychotic disorder.
Naganuma agreed that Mother and Father have a history of domestic violence and had discussed that issue with each of them. Naganuma testified that domestic violence continues to be a problem for both Mother and Father.
Naganuma believed that Mother had caused H.M. ongoing emotional distress. The basis for her belief was that, shortly after the detention hearing, H.M. had reported to the family services worker he was upset because Mother would not let him take telephone calls from Father and spoke negatively about Father. Maternal Grandparents had told Naganuma that H.M. had said he was afraid of Father and Stepmother, but when asked about this, H.M. denied saying that. H.M. also had denied a report that he had overheard Father saying that Mother had tried to kill him.
Naganuma recommended that H.M. not be returned to either Mother or Father and recommended Evidence Code section 730 evaluations for both. Naganuma was concerned that (1) H.M. had tested positive for benzodiazepine, (2) Mother seemed to have delayed medical treatment after he coughed up blood, and (3) Father had removed him from CHOC and taken him to Loma Linda Hospital where they waited for several hours. Naganuma expressed concern about the ongoing conflict over custody. She testified that she did not know whether Mother or Father had gained insight into how their behavior affects H.M.
Naganuma believed that Stepmother "joined in with" Father to make H.M.'s medical visits difficult. Naganuma was concerned that during the Snow Valley incident Stepmother had pulled a gun from the car and fired it into the air and that neither Father nor Stepmother have seemed to recognize the problem with firing a gun into the air with children present. Naganuma believed it best that for H.M. that Stepmother not be present at exchanges or at H.M.'s medical visits if Mother were present. Naganuma believed Stepmother should join Father in counseling. Naganuma testified that H.M. had told her that he likes Stepmother and calls her "Jen Ma" or "Mom Jen."
Naganuma had spoken with Father's therapist and believed Father's therapy should be more specific to the issues in the dependency case. She was concerned that Father's therapist had not handled a dependency case before and believed it would be best for Mother and Father to have a therapist with training in and experience with dependency court issues. Naganuma had not, however, gone over with Father's therapist the issues and goals to be addressed in therapy. Naganuma was concerned about Father's mental health and wanted him to undergo an Evidence Code section 730 examination.
Naganuma believed that H.M. should have his own therapist. He was not given a therapy referral because due to "budget issues." H.M. was doing "very well" in the care of Maternal Grandparents; however, Naganuma had only seen H.M. twice in their home. H.M's health had improved since being placed with Maternal Grandparents: he had gained weight and had not been placed on sick protocol.
Maternal Grandparents reported to Naganuma that H.M. had said he was afraid of Father and had overheard Father say that Mother tried to kill him. H.M. denied making those statements. Naganuma did not know who was being honest. Naganuma had had no issues with Maternal Grandparents' veracity or cooperation. Maternal Grandparents had told Naganuma that they did not think H.M. should be returned to either Mother or Father but supported family reunification.
Naganuma did not believe Father was ready to have H.M. returned to his care because "Father needs to work some more in counseling, especially to understand his role in the relationship between him and Mother and to . . . process how he can work better with . . . Mother." Father's actions on March 9, 2017 caused Naganuma to have concerns about Father's judgment because those actions delayed H.M. receiving medical care. She believes that both Mother's and Father's obsession with obtaining custody of H.M. had clouded their judgment in safely parenting him. Naganuma described Father "as being volatile at times", but believed both Mother and Father need counseling to address anger management.
H.M. wanted fewer visits with Mother and more visits with Father. Father's visits with H.M. were going well and Naganuma had no concerns about Father's ability to parent H.M. during the visits. Father's visits with H.M. were not liberalized because Maternal Grandparents reported that Father had discussed visitation with H.M., and Naganuma remained concerned that Father would talk to H.M. about the case if visits were not monitored.
Naganuma had spoken with Mother's therapist, who reported that Mother was stable and compliant in taking her medication. The therapist had reported having no concerns about H.M.'s safety with Mother and she was doing well in therapy.
Naganuma expressed concern over H.M.'s behavior toward Mother during visits. In the beginning, H.M. was somewhat rude to Mother. Visits had improved, but H.M. "is still distant and rude" to Mother.
Naganuma believed that Father had been medically neglectful by removing H.M. from CHOC and transporting him by car to Loma Linda Hospital, and then taking him to a hospital without a cystic fibrosis clinic. As for the Squaw Valley incident, Naganuma was concerned that four children were in a car with a gun, the gun was fired in the children's presence, Father did not know a gun was in the car, and the gun was stored in a glove box accessible to H.M. Naganuma was concerned that Father supposedly used racial slurs during the altercation at Snow Valley. Naganuma was not concerned that Father himself would harm H.M.
Taking into consideration "the whole picture," including H.M.'s desires, Naganuma recommended keeping H.M. placed with Maternal Grandparents with visitation for Mother and Father. The court asked Naganuma to identify her specific concerns about placing H.M. with Father and her specific concerns about placing H.M. with Mother. Naganuma's concerns about placement with Father were (1) Mother and Father would not put aside their personal issues and do what would be best for H.M., and (2) H.M. had tested positive for benzodiazepine. Naganuma had the same concerns about placement with Mother. In addition, Naganuma was concerned that Mother had a mental health issue for which she has had to be hospitalized and, if Mother were hospitalized again, H.M. would not have her as a caretaker. Naganuma was not given access to Mother's medical and prescription records, and therefore could not determine whether Mother had been prescribed benzodiazepine.
Naganuma did not believe that court orders would be effective in preventing Mother and Father from placing H.M. in the middle of their conflicts because both of them had had difficulty following court orders. F. Nancy Wheeler-Dobrota
Nancy Wheeler-Dobrota is a registered nurse and is employed by Loma Linda Hospital as a nurse clinician in the Cystic Fibrosis Clinic. On March 6, 2017, Mother contacted Wheeler-Dobrota and informed her that H.M. had coughed up or vomited blood. Because Mother was unable to make an appointment to see a physician at Loma Linda Hospital, Dr. Joshi authorized her to take H.M. to Dr. Reda at CHOC.
On March 9, Wheeler-Dobrota was informed by Dr. Joshi that H.M. was being taken to a hospital. Later that day, Father arrived at Loma Linda and met with Wheeler-Dobrota and the social worker. Father asked that a toxicology screen be conducted on H.M. because Father believed Mother "may have given [H.M.] something." Father was told that Dr. Joshi would admit H.M. to Loma Linda Hospital.
Wheeler-Dobrota learned later that day that Father had taken H.M. to the emergency room at Loma Linda Hospital. She had not told Father a bed was waiting for H.M. at Loma Linda Hospital. She had started the process to admit H.M. to Loma Linda, but no paperwork was prepared. Neither Wheeler-Dobrota nor the hospital social worker advised Father to go to CHOC and remove H.M.
VI.
Jurisdictional/Dispositional Order
At the close of testimony, the juvenile court took judicial notice of the family court minute orders dated November 29, 2016 and February 6, 2017. The February 6, 2017 order stated "[H.M.] not be seen by doctors or other medical treatment staff other than those who have been treating him at Loma Linda [Hospital] unless those doctors recommend otherwise."
At the end of the jurisdictional hearing, the juvenile court stated its ruling at length on the record. The court prefaced its ruling with some general comments about Mother and Father and the events leading to the dependency proceedings. The court stated it "has no interest in meeting any of [Mother]'s or Father's desires, wishes, hopes, [or] justifications. And I'm not here to point fingers at anyone. I don't care whose fault it was as to what happened. [¶] . . . If you think this child . . . has not heard you, has not seen your behavior, you're wrong."
The court noted that H.M. was brought into the dependency system because he tested positive for benzodiazepine, which is "akin to being poisoned." Although the court made no formal finding on the issue of how H.M. ingested benzodiazepine, the court did state as to Mother's and Father's competing theories: "If there was this fantastic scheme by Father to pre-drug [H.M.] and deliver him such to Mother, then why is it that on the third day when [Father] was his way down to pick up his child, he turned around and went back home. [¶] If his interest was to set up [Mother], and pre-drug [H.M.], then on that third day he would have come and picked up [H.M.] and taken him to the hospital or somewhere and gotten him drug tested. [¶] Father didn't do that. [H.M.] was left with Mother."
As to Father removing H.M. from CHOC, the court stated, "I have no evidence to believe that this child was in severe medical trauma such that there was any type of risk." The court found that Father removing H.M. from CHOC caused no harm because the medical reports indicated H.M. was not in serious medical condition."
The juvenile court stated it had reviewed the supporting evidence in the detention and jurisdiction reports and the numerous sheriff's reports made when Mother contacted law enforcement and made accusations against Father. The court noted that Father had never been arrested and all of the reports were unsubstantiated. "Calling the police again and again and again on Father about Father leads this court to believe—while Mother has [H.M.]'s best interest at heart—I have no doubt, this is not about how much you love your child. Perhaps Mother is extra-vigilant, over-vigilant, but this is not about being protective of [H.M.] This is hurting [H.M.] [¶] What this has done is this has actually brought this case to dependency. The hypervigilance, the exaggerated protectiveness leads this court to believe that if, in fact, [H.M.] was in such bad shape, CHOC would not have allowed [H.M.] to be taken out of their facilities."
As to the Snow Valley incident, the court stated, "Guns and children in the same area are a formula for disaster; even if you know how to handle guns; even if you're maintaining your gun in its safest mode." Because there had been no criminal conviction or evidence of misuse of guns, the court decided it "cannot hold that to be something that places [H.M.] at risk."
The juvenile court dismissed allegation b-1 because it was duplicative of other allegations, and also dismissed allegations b-3 and b-8. Allegation b-2 was amended by interlineation to read that Mother had unresolved mental health issues and had been placed on a section 5150 hold at least four times. The court found allegations b-2, as amended, b-4, b-5, b-6, and b-7 to be true by a preponderance of the evidence. The court declared H.M. to be a dependent child of the juvenile court under section 360, subdivision (d). The court found that vesting custody with Mother would be detrimental to H.M. and that vesting custody with Father was required to serve H.M.'s best interest. In placing H.M. with Father, the court found that Maternal Grandparents had done the best they could do given the circumstances, but they were not neutral parties.
The court ordered the Mother and Father communicate with each other only through SSA. Mother and Father were to have no contact at H.M.'s drop off and pick up, and were not to be permitted to be close physically to each other.
The court expressed concern over H.M.'s relationship with Mother: "This child needs to find a way to re-establish his connection with [Mother]. This child right now is running away from [Mother]. Doesn't want to have a relationship with [Mother]. Doesn't want visits with [Mother]." The court ordered an Evidence Code section 730 evaluation for Mother to diagnose her current mental health issues. "[T]here's a belief that [Mother] is not bipolar. The court has no idea . . . whatever [Mother]'s mental health issues are. Because obviously there is a problem. [Mother] has been 5150'd four times, and yet we don't have a diagnosis of what Mother is suffering from."
Mother was given weekly visitation with H.M. Every other week would be a two-hour visit with H.M. "in a therapeutic setting." Opposite weeks would be four hours of monitored visitation at a location near Father's home. The court authorized SSA to liberalize Mother's visits. To prevent confrontation between Mother and Father, the court ordered Father to deliver H.M. to SSA at a location near the site of the therapeutic visits with Mother. SSA then would deliver H.M. to the visitation site. Mother and Father were not to come close to each other because, the court told them, "[n]either one of you can be trusted."
The court found that a "cooling off period" was necessary before H.M. resumed telephone calls with Mother. The court suggested that monitored telephone calls resume in about one month after therapeutic visitation had started. The court issued an order barring contact between Mother and Stepmother.
H.M's attorney asked the court to authorize services for Father to address his impulsive behavior and believed an Evidence Code section 730 evaluation was appropriate. The court did not believe an Evidence Code section 730 evaluation was necessary for Father, but ordered SSA to find him a new therapist.
DISCUSSION
I.
Standard of Review
Mother challenges three of the court's dispositional rulings: (1) ordering custody of H.M. be vested with Father; (2) not ordering an Evidence Code section 730 evaluation for Father; and (3) finding that reasonable efforts had been made to prevent or eliminate the need for removal of H.M. In addition, Mother argues the court erred by not ordering the dependency petition be amended to allege a count under section 300(c) for serious emotional damage.
We review the juvenile court's dispositional findings under the substantial evidence standard. (In re J.S. (2014) 228 Cal.App.4th 1483, 1492; In re T.V. (2013) 217 Cal.App.4th 126, 136.) "[T]he issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.)
II.
SSA Is Not Judicially Estopped from Advocating
Affirmance.
Before addressing the sufficiency of the evidence, we address Mother's argument that SSA is judicially estopped from arguing that substantial evidence supported the juvenile court's dispositional findings. SSA took the position below that custody should remain vested with Maternal Grandparents. In SSA's Respondent's brief, SSA argues substantial evidence supported not removing H.M. from Father's custody. According to Mother, SSA has changed its position and is estopped from doing so.
We disagree. It has been held that "'"[a]lthough equitable estoppel may apply to government actions where justice and right so require, 'estoppel will not be applied against the government if the result would be to nullify a strong rule of policy adopted for the benefit of the public [citations] or to contravene directly any statutory or constitutional limitations. [Citation.]' [Citations.]"' [Citation.] The public policy here is the protection of abused and neglected children (§ 300.2) and the children's need for stability and permanence." (In re Joshua G. (2005) 129 Cal.App.4th 189, 197.) Because the juvenile court's order furthers those policies, the policy preventing the application of equitable estoppel against SSA would apply equally to the doctrine of judicial estoppel.
Setting aside the question of whether the doctrine of judicial estoppel may be applied against SSA in a dependency hearing, two requirements for judicial estoppel are not met here. Judicial estoppel applies when: "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake." (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183, italics added.)
SSA was not successful in asserting that H.M. should remain placed with Maternal Grandparents. SSA's position on appeal is not totally inconsistent with its position at trial. At trial, SSA recommended and advocated, based on the law and the evidence, that H.M. remain placed with Maternal Grandparents. On appeal, SSA is acknowledging that substantial evidence supported the trial court's findings.
III.
Substantial Evidence Supported the Order Vesting
Custody with Father.
Before the juvenile court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal. (§ 361, subd. (c)(1).) The question under section 300 is whether circumstances at the time of the hearing subjected the minor to the identified risk of harm. (In re T.V., supra, 217 Cal.App.4th at p. 133.) In making that determination, the court may consider past events as "[a] parent's past conduct is a good predictor of future behavior." (Ibid.) "Thus, the court 'must consider all the circumstances affecting the child, wherever they occur.'" (Ibid.)
Substantial evidence supported the juvenile court's decision to vest custody of H.M. with Father. The court heard days of testimony and had the opportunity to assess witness credibility, in particular, the credibility of Mother and of Father. The court's ability to assess witness credibility, and our deference to such assessment, is of particular significance in this case given the emphasis at trial on testimony and the need to evaluate Mother's and Father's subjective beliefs, motivations, and sincerity, in order to reach a decision. On the three main issues that consumed SSA's reports and trial time—H.M.'s ingestion of benzodiazepine, Father removing H.M. from CHOC, and the Snow Valley gun-firing incident—the court implicitly, if not expressly, found Father to be credible.
The court did not accept Mother's theory that Father had given H.M. benzodiazepine to set up Mother and found her theory to be inconsistent with the facts. While the court did not expressly find that Mother gave H.M. the benzodiazepine, the court commented that H.M. had been with Mother for nearly a week when he tested positive for that drug. H.M. testified he always felt sleepy after eating at Mother's house. Father testified that he did not give H.M. benzodiazepine and kept his medications in a locked dresser drawer. The court obviously believed Father, as was its prerogative. Substantial evidence therefore supported a finding that vesting custody with Father would not place H.M. at risk of ingesting benzodiazepine again.
Father's removal of H.M. from CHOC was the subject of seemingly endless testimony with both Mother and Father persisting in attempts to prove the other did wrong. The juvenile court found that removing H.M. from CHOC caused no harm because H.M. was not seriously ill. More importantly, we believe, Father testified several times and in several ways that he made a mistake by removing H.M. from CHOC. Father conceded he messed up. He testified if he were to do it over, he would have left H.M. at CHOC and, if the situation were ever to arise again, he would leave H.M. there. The juvenile court saw and heard Father confess his error and could believe or disbelieve his sincerity. By vesting custody with Father, the court implicitly, if not expressly, believed him to be sincere.
The Snow Valley incident was not alleged in the dependency petition as a basis for jurisdiction. In any event, it would not have provided sufficient basis for removing H.M. from Father's custody. While, as the juvenile court found, "[g]uns and children in the same area are a formula for disaster," there was no evidence of a criminal conviction arising out of the Snow Valley incident. The evidence showed that charges against Stepmother were dropped because she acted in self-defense, and Father was granted a plea of factual innocence. Mother and SSA (at trial) tried to show that Father was at fault for escalating the situation; however, the sheriff's report and Father's testimony showed that Father (who was unarmed) and Stepmother were attacked by 10 people after he had asked four of them politely not to smoke marijuana in his children's presence. Father believed, naturally so, that Stepmother's actions in firing the gun saved his life and protected his family. There was no evidence Father's guns were owned illegally or were not properly licensed. Father testified he keeps his firearms locked away and his two oldest sons are trained in firearm use and safety.
In areas of care and treatment, substantial evidence supported a finding that H.M. would not be at substantial risk of harm if returned to Father's custody. Father initially was in denial about H.M. having cystic fibrosis, but that was years ago. Now, Father fully accepts and understands H.M.'s condition, and, under Father's care, H.M. receives all of his treatments. Father's testimony established that Father and Stepmother know precisely H.M.'s treatment regimen, including his sick protocol, and how to administer it. Father testified that H.M. never got sick while in his care. H.M. likewise testified that he never got sick while staying with Father but was sick "a lot" when staying with Mother.
H.M. testified in chambers, outside the presence of Mother and Father, that he wanted more visits with Father and liked living with Father, Stepmother, and his siblings. Although H.M.'s desires are not controlling, they should be considered. (See § 361.3, subd. (a)(2).)
IV.
The Juvenile Court Did Not Err by Not Ordering an
Evidence Code Section 730 Evaluation of Father.
Mother argues the juvenile court erred by not ordering funds for an Evidence Code section 730 evaluation of Father. The only basis for her argument is that the court ordered an Evidence Code section 730 evaluation of her, and "[i]f funds were short, the money was better spent on Father because Mother was engaged in mental health treatment." The juvenile court ordered an Evidence Code section 730 evaluation of Mother (which she did not oppose) because one of the dependency petition's allegations is that Mother has unresolved mental health issues. As of the time of trial, Mother had refused to release any of the medical records from her section 5150 holds and there were conflicting opinions about whether she was bipolar.
Father's situation is different. There has never been an allegation that he suffers from a psychiatric disorder. The court ordered "a new Ph.D. level therapist for [F]ather" who could treat him "in areas of concern."
V.
Mother Forfeited Her Contention the Juvenile Court's
Finding Under Section 360(d) Is Erroneous
Mother contends the juvenile court erred by finding pursuant to section 360(d) that reasonable efforts had been made to prevent or eliminate the need for removal of H.M. Mother makes that argument in a single sentence without a separate argument heading and fails to develop the argument except to say that SSA did not have a therapist for H.M. due to budget issues. We deem the argument forfeited. (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074 [arguments not fully developed, not designated by separate argument headings, and not presented with sufficient analysis of the issues, are subject to forfeiture]; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 ["'"When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"'"]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["We are not bound to develop appellants' arguments for them"].)
VI.
Mother Forfeited Her Claim the Juvenile Court Erred by
Not Amending the Dependency Petition to Allege a Count
Under Section 300(c). Nonetheless, the Court Did Not Err.
Mother argues the juvenile court erred by not ordering the dependency petition amended to include a count under section 300(c) for serious emotional damage. Mother argues that H.M. has suffered emotional damage from Mother and Father "battling each other for over six years over custody" and that "[H.M.]'s continued emotional damages was likely to continue if he were placed with Father, and Mother had limited contact with her son."
The dependency petition alleged a count under section 300(b), for risk of serious physical harm or illness. The petition did not allege a count under section 300(c), for serious emotional damage. A juvenile court has authority to allow amendments that conform to proof. (In re Andrew L. (2011) 192 Cal.App.4th 683, 688-689.) But nobody, not even Mother, at any point in the proceedings asked the juvenile court to amend the petition to include allegations under section 300(c). For that reason, SSA argues Mother has forfeited any claim the court should have so amended the petition.
We agree the claim is forfeited. (Cf. In re Daniel C.H. (1990) 220 Cal.App.3d 814, 836 [parent who does not object to amendment to conform to proof in juvenile court forfeits issue on appeal].) The purpose of the forfeiture rule is to give the trial court opportunity to correct errors. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Had Mother asked the juvenile court to amend the dependency petition to add allegations under section 300(c), the matter could have been decided then and there and any error prevented.
Even if we assume the juvenile court had authority to amend the dependency petition sua sponte to add allegations under section 300(c), it would have been within the court's discretion to deny any amendment. The decision to amend to conform to proof is within the discretion of the trial court and its determination will not be set aside unless it clearly appears its discretion was abused. (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31; Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377-1378; see also In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043 [decision whether to allow amendment according to proof of dependency petition is reviewed under abuse of discretion standard].)
Mother does not cite authority for the proposition that a juvenile court has authority to amend a dependency petition sua sponte. The rules for amending pleadings in civil cases (Code Civ. Proc., tit. 6, ch. 8) govern dependency proceedings. (§ 348.) Nothing in those rules or the cases interpreting them allows a court to amend a pleading sua sponte according to proof or otherwise.
The juvenile court would have acted well within its discretion had it found the evidence did not support allegations under section 300(c). A child comes within the juvenile court's jurisdiction under section 300(c) when "[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care." (Italics added.)
Although the juvenile court found that "emotional damage for [H.M.] has already happened", section 300(c) "seeks to protect against abusive behavior that results in severe emotional damage." (In re Alexander K. (1993) 14 Cal.App.4th 549, 559.) H.M., not surprisingly, experienced sadness and anxiety due to his parents' constant and unending hostility; however, the evidence could be viewed as not supporting allegations that he is suffering or has suffered serious emotional damage and that his symptoms were severe. H.M. was content in the care of Father or Maternal Grandparents, was generally well-behaved, did well in school, enjoyed playing sports, interacted happily with his siblings, and had friends.
VI.
The Juvenile Court's Comments About Mother's
"Hypervigilance" Were Not Erroneous
But Have Limited Meaning.
Mother argues in her reply brief that substantial evidence did not support a finding that she was over-vigilant in H.M.'s medical care. The juvenile court commented in making its rulings that "[p]erhaps Mother is extra-vigilant, over-vigilant" and "hypervigilance, the exaggerated protectiveness leads this court to believe that if, in fact, [H.M.] [were] in such bad shape, CHOC would not have allowed [H.M.] to be taken out of [its] facilities." (Italics added.)
The juvenile court's comment that Mother perhaps is over-vigilant cannot be taken, and must not be treated, as a formal dispositional finding. The dependency petition did not allege that Mother failed to protect H.M. by taking a hyper-vigilant approach to his medical care.
As to the reason for taking H.M. to CHOC, Mother was instructed by Dr. Joshi at Loma Linda Hospital to take H.M. to an emergency room, but the juvenile court's comments might reflect its assessment that Mother subjectively did not believe or had no reason to believe there was anything seriously the matter with H.M. when she took him to CHOC. Such assessment is consistent with evidence that H.M. was not sick when taken to CHOC and that H.M. was always "sick" with visiting Mother. But the juvenile court's comments about Mother's "hypervigilance" and "exaggerated protectiveness," when considered as a whole, must only be taken as a finding that H.M. was not seriously ill when taken to CHOC, as shown by evidence that Father was allowed to remove H.M. No more should be read into the court's comment.
DISPOSITION
The dispositional order is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.