Opinion
G063100
02-26-2024
In re F.C., a Person Coming Under the Juvenile Court Law. v. E.G. et al., Defendants and Appellants; ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, R.C., Defendant and Respondent.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant E.G. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant the Minor. Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Respondent R.C. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent Orange County Social Services Agency.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 23DP0748 Lindsey E. Martinez, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant E.G.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant the Minor.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Respondent R.C.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent Orange County Social Services Agency.
OPINION
MOORE, J.
The parents in this juvenile dependency matter were legally separated and shared custody of their nine-year-old daughter, F.C. (the child or the minor). As of 2023, R.C. (the father) was living with his long-term girlfriend, P.Z., who had a history of mental illness, including homicidal ideation and delusions. P.Z. began experiencing homicidal ideation toward the child, which eventually led to a petition by the Orange County Social Services Agency (SSA) regarding the father's failure to protect under Welfare and Institutions Code section 300, subdivision (b)(1).
Subsequent statutory references are to the Welfare and Institutions Code.
By the time of the jurisdiction/disposition hearing, P.Z. had moved out of the father's home and a restraining order had been issued against P.Z. with respect to the child. It had not been violated. At the hearing, both the social worker and the mother testified there were no current safety issues with respect to the father as long as he did not allow P.Z. to violate the restraining order and contact the child. The juvenile court therefore found SSA had not met its burden to show by clear and convincing evidence that returning the child to the father's care would pose a substantial danger to her. The court declared the child a dependent, ordered family maintenance services for both parents, and set a review hearing.
The child's counsel and the mother now appeal, arguing, primarily based on facts at the time the case was initiated, that the court erred. We disagree. It was uncontested at the hearing that the father alone posed no risk of harm, and there was no evidence he had allowed or intended to allow P.Z. to violate the restraining order. Accordingly, there was not clear and convincing evidence of risk if the child were returned to his care, but there was substantial evidence to support the court's ruling. We therefore affirm the court's disposition order.
I
FACTS
E.G. (the mother) and R.C. (the father) had F.C. in 2014, during their marriage. The parents legally separated in 2019. There was domestic violence during the marriage, and the mother was arrested and pleaded guilty to disturbing the peace. The mother also had a history of mental health issues including anxiety and depression. After the parents' separation, they shared physical custody of F.C.
After separating from the mother, the father began a new relationship with P.Z., who eventually became his live-in girlfriend. P.Z. had severe anxiety and depression, to the extent that she qualified for federal disability benefits. She also had a history of homicidal ideation and hallucinations, which she had informed the father about at the beginning of their relationship. She had previously been diagnosed with schizophrenia and bipolar disorder.
In 2023, P.Z.'s homicidal thoughts began to worsen. At the time, the child, who was eight years old, was spending two days a week in the home of the father and P.Z. P.Z.'s homicidal thoughts included thoughts about the child, including using a kitchen knife to hurt the child. She reported that she had been experiencing episodes in the middle of the night in which she would go downstairs, obtain a kitchen knife, go back upstairs to the child's room, and squeeze the knife so hard she started crying. She had not hurt the child because she "snaps out" of these episodes. It is unknown if these episodes were real or hallucinations. P.Z. disclosed her mental state to the father, who did not believe the episodes were real. At times, P.Z. was alone with the child, with whom she had a troubled relationship, while the father was at work. On July 2, P.Z. checked herself into College Hospital.
SSA began an investigation once the situation was reported. The father agreed to a safety plan, which included provisions stating the father would ensure that P.Z.'s mental health was stabilized once she was back in the home, including a medical discharge plan that included medical and mental health services. P.Z. was required to be medication compliant before she was left alone with the child. Further, should the father be required to work while the child was in his care, she would be looked after by the mother or someone else.
During an SSA interview, F.C. reported that she felt safe at both parents' homes. F.C. indicated that P.Z. was "'mean' most of the time" and would yell at her.
On July 5, P.Z. left the hospital. The father said she had permission to do so from her attending doctor, but her discharge documents indicated that she had left against medical advice. The father claimed the documents must be in error and P.Z. was told "she could leave by her doctor." He asserted that she was stable. The social worker explained that leaving against medical advice did not equate to P.Z. being medically stable as required by the safety plan. The father agreed to a second safety plan, but continued to minimize P.Z.'s condition.
On July 7, the juvenile court granted a protective custody warrant authorizing the child's temporary removal from the father. On July 11, SSA filed a dependency petition asserting jurisdiction under section 300, subdivision (b)(1), alleging failure to protect. After the initial hearing, the court ordered placement of the child with the mother only and issued protective orders, including an order stating the child was not allowed to be around P.Z. without supervision.
The petition also included allegations about the domestic violence between the parents during their marriage, and the mother's mental health issues. We disregard these issues as they are not pertinent to this appeal.
In late July, minor's counsel filed a restraining order on her behalf against P.Z. The father assisted in serving the restraining order papers on P.Z. Without objection, the court granted the restraining order for three years. Around the same time, the mother told the social worker she would be filing a restraining order against the father and would be seeking 100 percent custody.
In August, when the social worker indicated her intent to liberalize the father's visitation to unsupervised, the mother objected. Although the child indicated to the social worker that she was afraid of P.Z., not the father, and thought unsupervised visits would be "okay," the mother first told the social worker that she was "afraid" of unsupervised visits, then later stated the child was afraid of the father. She also stated she did not want the social workers on the case to speak to the child any further. The following day, the social worker contacted the mother again about the father's attendance at a school event, with the mother insisting she had the right to exclude the father. The social worker stated she was incorrect, at which point the mother stated she no longer wished to speak to SSA and she did "not need to listen" to them. Visitation continued to be supervised, as the mother stated she would not allow visitation unless it was.
In the period prior to the jurisdiction hearing, the father remained in a relationship with P.Z., who had moved out of his home. There was no indication she had violated the restraining order. SSA reported the father was cooperative and open to services. The mother did not believe she needed to participate in services because "child protected services was not called on her." The father was concerned the mother and maternal grandmother would hide the child from him, and claimed they had done so in the past.
Prior to the disposition hearing, SSA recommended family maintenance services to the mother and enhancement services to the father. SSA was "concerned about the father's judgement in leaving the child in the care of his girlfriend, who had homicidal thoughts and episodes about harming the child, which places the child at risk of getting harmed or injured. Additionally, there is concern the mother may continue to have unresolved mental health and anger management issues which may negatively impact the child's emotional well-being."
At the hearing, the court sustained the petition with minor amendments. At the continued disposition hearing, the court considered SSA's reports and testimony from the social worker, the child, and the mother.
The social worker testified that there had been no issues during the father's supervised visits and SSA did not see a risk to the child if visitation was unsupervised. She also testified that because the mother had refused unsupervised visitation, the father had not been exercising the full 12 hours he was allotted per week, because the child did not like the visitation center and was bored there. The father had therefore been considerate to her needs and wishes, but the social worker felt the mother had been interfering with the father's parenting time. The social worker testified there is no risk of harm to the child in her father's care, but his ongoing relationship with P.Z. was a cause for concern. The child had expressed to the social worker that she wanted unsupervised visits with her father, and the child's only concern was the potential presence of P.Z. SSA was not recommending family maintenance because the father had not had the time to complete his recommended services.
The child testified that she liked seeing her father, and she would prefer to see him someplace other than the visitation center. She was happy that P.Z. did not live with her father any longer. She would be comfortable going to her father's house as long as P.Z. would not be there. She was not scared of her father, and she did not want anyone to supervise her visits with him. As relevant here, the mother testified that other than P.Z., she did not have any safety concerns about the father.
In closing, SSA's counsel stated the agency was "in a really difficult position" and conceded there was no new information showing the child was at risk of harm in her father's home. There had been no recent incidents with P.Z., she did not live in the home anymore, and the father was attempting to get engaged in services. Counsel stated SSA had done what it could, but could not "satisfy all the parties, because it's inherently going to be this spectre that [P.Z.] is going to descen[d] on [the child] and be present during [the] father's parenting time." Counsel conceded there was no immediate safety concern, but nonetheless, SSA could not offer family maintenance services to the father because the mother "has not released [the child] for unsupervised time." Instead, SSA's facilitation of supervised visits had been an effort "to assuage the concerns of the mother and minor's counsel." The only reason there had been no unsupervised visitation was the mother.
Both the mother and the child's counsel argued in favor of SSA's recommendation. The mother argued that based on the father's "historical failure to protect," a substantial danger existed were she to return to his care. The child's counsel argued this was "a really scary situation" based on the father's history of minimizing and failing to follow the safety plans, as well as allowing P.Z. to briefly move back in after the detention hearing. Counsel argued there was not sufficient evidence in the father's changed state of mind regarding P.Z. Counsel requested for visits to be "loosely supervised," or in the alternative, to close the case with existing orders.
The father's counsel argued SSA had failed to meet its burden, and based on the testimony of the social worker, there was no risk of harm in the father's care.
In its ruling, the court found all witnesses very credible, and that all the witnesses had consistently testified there was no risk of harm to the child in the father's care. There was no other information and no evidence that P.Z. had violated the restraining order. While the court shared the speculative concerns about P.Z. materializing, the father had been cooperative with the restraining order and had assisted in serving it on P.Z. The court could not, however, operate on speculation.
The court found F.C. to be a dependent child and kept the case open. The court vested custody jointly with both parents and ordered family maintenance services for both. The court informed the father in the strongest possible terms that P.Z. "cannot have any contact whatsoever" with the child and the father indicated that he understood. The court ordered both parents, but particularly the father, that if P.Z. attempted any contact with the child, he was to call law enforcement. The child's school was also to be provided with a copy of the restraining order. The court ordered a six-month review hearing set.
The mother and the child now appeal.
SSA submitted a letter brief indicating it did not oppose the mother and the minor's appeal, "to the extent it inures to SSA's benefit."
II
DISCUSSION
Relevant Law
To order a child removed from a parent's care at the disposition hearing, the court must determine whether there is clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) To order a child removed, there must be a present risk of harm, although the "court may consider past events to determine whether the child is presently in need of [the court's] protection." (In re A.F. (2016) 3 Cal.App.5th 283, 289, italics added.)
Standard of Review
We review the court's determination under section 361, subdivision (c)(1), for substantial evidence. "Substantial evidence is evidence that is 'reasonable, credible, and of solid value'; such that a reasonable trier of fact could make such findings." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) "Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.) "[W]e draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.)
Return of the Child to the Father's Care
Both the mother and the minor's counsel base their arguments that the court erred on the facts that gave rise to this case. The mother states that the risk to the child "was substantial under any standard" where P.Z. entered the child's room with a knife while experiencing homicidal thoughts. She argues that even if there was a "low likelihood" that P.Z. would harm the child, the risk could be deemed substantial. While admitting it is not "controlling," the mother cites In re S.R. (2020) 48 Cal.App.5th 204 (S.R.). In that case, the court affirmed a removal order against a father who had been arrested for possession of child pornography, reasoning that "there was a cognizable and unmitigated, but arguably low, probability" that the father would physically offend against the child, resulting in "'extreme harm.'" (Id. at p. 224.)
We must point out that while P.Z. reported this, it is unknown if she actually committed this act or hallucinated that she did. Either way, P.Z.'s mental state was alarming, but we must be cautious that the facts reflect the actual record.
This case, however, is not the least bit comparable. The father in S.R. was essentially the same person with the same proclivities at the time of his arrest and the time the court entered disposition orders. While there was a risk to F.C. at the time this case was initiated, that danger had been substantially ameliorated by the time of disposition. P.Z. no longer lived in the father's home. A three-year restraining order had been entered against her, and there was no evidence it had been violated. The father had been cooperative with SSA and committed to enrolling in and completing services. At the disposition hearing, both the mother and the social worker indicated there was no present danger to the child in the father's care. P.Z.'s mental state was no longer an issue as long as she was not allowed near the child, and there was not any evidence at all that she had been or would be allowed by the father to be in the child's presence in violation of the restraining order.
The father had not yet begun services, which consisted primarily of a parenting class and therapy, for various legitimate reasons, including the fact that the parenting class he was referred to did not begin until October. He was in the intake process for therapy.
Minor's counsel's argument is based entirely on the history prior to the restraining order. "In the present case, based on [the] [f]ather's historic lack of cooperation in permitting [P.Z.] to be around [F.C] without supervision, which violated two different safety plans, placement with [the] [f]ather would subject [F.C] to a substantial risk of danger." This argument, however, assumes nothing has changed since the outset of the case. The father has repeatedly expressed his understanding that the restraining order against P.Z. must be honored, and he has done so. Both appellants quote In re A.F., supra, 3 Cal.App.5th at page 289, for the proposition that "the juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection."
But both parties ignore the word "may" and seem to interpret it as "must." Neither appellant points to any case where the failure to rely on past events was deemed error; indeed, neither cites any case where a juvenile court's decision to return a child based on a lack of substantial risk was deemed error on appeal.
Both parties ignore the first clause of the same sentence they rely upon, which states "there must be a present risk of harm to the minor." (In re A.F., supra, 3 Cal.App.5th at p. 289.) That "present risk" is not identified here, and the existence of present risk is not supported by the testimony of either the mother or the social worker.
Minor's counsel also argues: "The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re N.M. (2011) 197 Cal.App.4th 159, 165.) The court has taken jurisdiction and has taken steps necessary to protect the child. Counsel also argues that "'"[t]he parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child."'" (In re John M. (2012) 212 Cal.App.4th 1117, 1126.) While true, this is irrelevant. The court cannot ignore the statutory requirement of present risk of harm and rely purely on speculation of what might happen, particularly when the restraining order was working thus far.
"'The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly.'" (In re A.E. (2008) 168 Cal.App.4th 1, 4.) Ordering family maintenance was not an abuse of the court's discretion in this case. SSA simply did not meet its burden by clear and convincing evidence to demonstrate that F.C. was presently at substantial risk in her father's care. There was substantial evidence, based on the testimony and the social worker's reports, that the father would continue to cooperate with SSA, enroll in and complete services, and honor the restraining order against P.Z. as the court directed. Accordingly, the court did not err in determining he did not pose a substantial risk of harm.
III
DISPOSITION
The juvenile court's disposition order is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOTOIKE, J.