Opinion
B229068
12-01-2011
In re J.R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. Z.R., Defendant and Appellant.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK82910)
APPEAL from an order of the Superior Court of Los Angeles County, Marguerite D. Downing, Judge. Affirmed in part; reversed in part.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A father argues a dependency court erred when it asserted jurisdiction over him pursuant to Welfare and Institutions Code section 300, subdivision (b), and by failing to place his son in his sole physical custody. We reverse the jurisdictional order which is unsupported by the evidentiary record. However, we find no error with respect to the court's dispositional order which applies to both parents (one of whom has not appealed), and mirrors an extant family law custody order, and affirm that ruling.
FACTUAL AND PROCEDURAL BACKGROUND
J.R., born in May 2005, is the son of appellant Z.R. (father) and Tiana W. (mother). A Welfare and Institutions Code section 300 petition filed in July 2010 by respondent Department of Children and Family Services (DCFS) alleged that J.R., and his maternal half-brother, J.W. (who is not a subject of this appeal), were at risk of serious physical harm and neglect because father had violent physical altercations with mother and mother had failed to protect the children. (Mother is not a party to this appeal.) The petition alleged the children were also at risk because mother had abused her brother, J.R.'s maternal uncle (born in 1998), and that father's female companion had physically abused J.W. (Welf. & Inst. Code, § 300, subds. (a), (b), (j).)
Statutory references are to the Welfare and Institutions Code.
The juvenile court found father to be J.R.'s presumed father, and released the children to mother. Father was given unmonitored visits as long as his girlfriend, Ashley (whom he later married), was not present.
DCFS submitted a Jurisdiction/Disposition report in late July 2010. That report reflected that J.R. was currently in mother's care and that, according to a September 2008 family law order, the parents had joint legal and physical custody. J.R. stayed with mother during the week, and with father from Friday through Sunday and the first half of each summer. That arrangement was altered—mother was temporarily given primary custody and father's visitation was suspended—after mother obtained a temporary restraining order against father in summer 2010 after this action had been filed.
The report reflected a history of domestic violence between the parents. Father had completed a domestic violence program and no incidents of domestic violence had been reported in more than five years. The report indicated there was reason to believe that mother had physically abused her brother, causing bruising and bleeding to his body. J.W. told DCFS that his maternal uncle hit the boys with his fists "all the time," and that mother knew about those assaults and did not intercede.
During interviews with the children, both boys recanted their initial accusations that they had been hit by Ashley. They told DCFS mother had told them to say Ashley hit them because mother did not like Ashley. J.R. said mother told him he could not go to his father's house anymore because she "want[ed] Ashley to go to jail so she can't be my mom anymore." J.R. asked the social worker to "tell [his] dad that [he] still love[d] him and don't stop loving me," and said his mother told him his father didn't love or want him anymore because he had a new baby with Ashley. Father and Ashley denied that she ever hit either boy. Father told DCFS he had regular visits with both boys, until mother was arrested for beating her brother. After that, at mother's request, the boys lived with father and Ashley from October through December 2009. But mother picked the boys up for a visit one day in December and never returned them. The children had been very dirty when they came to live with father and said they had been living in a van with mother. Father enrolled the boys in school. He also provided health care coverage and child support for J.R. Father's mother and his great grandmother were familiar with the familial relationships and assured DCFS that Ashley cared for and had not hit the children.
Father had developed and wanted to maintain a close relationship with his stepson J.W. whom he had raised since the boy was a small child.
Mother told DCFS she did not fear father and there had been no incidents of domestic violence for over five years. She got a restraining order against him because her attorney told her to do so. Based on interviews with mother, DCFS concluded that she cared more about obtaining custody of J.R. and limiting father's visitation, and was far less concerned about the allegations that Ashley had abused the children. In DCFS's assessment, mother was still dealing with unresolved issues regarding her relationship with father and his relationship with Ashley, with whom he had two children. Mother appeared to be focused almost entirely on seeking retribution and retaliation against father by limiting his access to J.R. DCFS observed that the issues in the case related primarily to family law matters, but were not likely to be resolved without juvenile court intervention. DCFS recommended that father's visitation be returned to the outlines of the family law order: unmonitored overnight visits from Friday through Sunday, and half the summer, and that the parents receive family maintenance services.
The adjudication hearing was conducted on October 6, 2010. DCFS's reports and other documents were received in evidence and father testified. At the conclusion of the hearing, the court dismissed some allegations and amended others. It struck the allegations that Ashley had abused J.W. and struck the allegation regarding domestic violence between the parents. Instead, the court sustained amended allegations stating that: (1) mother and father "have a co-parenting conflict which has caused [J.R.] feelings of neglect and abandonment which cause him stress and trauma. [¶] Additionally, the conflict has caused mother to make [J.R.] tell falsities about his father and his stepmother. The conflict has also caused [J.R.] to feel that he has to choose between his parents . . . [and] prevents him from having a healthy child/parent relationship with either parent. [¶] Such conflict endangers [J.R.]'s physical and emotional health and safety [and] places [J.R.] at risk of physical harm, damage, danger, [and] emotional abuse;" (2) the maternal uncle physically abused J.W. and mother knew about the abuse and failed to protect her son. The court gave father overnight visits and lifted the restriction against Ashley's presence during visits.
In a last minute information report filed before the disposition hearing on October 20, 2010, DCFS reiterated its view that mother was using the dependency action to limit father's contact with J.R. By doing so, she caused emotional detriment to J.R. and J.W. due to her unresolved issues regarding her failed relationship with father and his relationship with his current wife. DCFS noted that it lacked authority to detain J.R. from mother. Nevertheless, it was clear that, by virtue of her conduct, mother was jeopardizing J.R.'s emotional state by retaliating against father and his wife and that her son's emotional stability would continue to remain at risk if she failed to address case-related issues. DCFS also noted that J.W. had a strong relationship with his half-brother. But he was also impacted by mother's retaliation; he was angry and blamed father for not visiting him. As a result, J.W. refused to have contact with father. It was necessary that J.W. remain in mother's care because his father (Cory) was now living with mother and making an effort to strike a balance between her actions and his son's best interests.
In DCFS's view, it would be in J.R.'s best interest to be placed in father's physical care if mother failed to undertake therapy to address her unresolved issues. DCFS did not recommend that father be granted physical custody of J.R. because doing so would separate the siblings and possibly cause additional emotional detriment, but also said it would not oppose to such an order if the court made one.
At the conclusion of the disposition hearing the juvenile court ordered that J.R. be placed in the "HOME OF PARENT(S) under supervision of DCFS," mother would have custody of J.R. on Mondays through Fridays, and he would be in father's custody Friday night through the weekend. The court ordered the parties to try to work out an agreement giving father more time with his son. Father appeals. Mother does not appeal from the jurisdictional or dispositional orders.
DCFS filed a notice of cross-appeal for which it subsequently requested and received dismissal. DCFS did not submit a respondent's brief in this appeal.
DISCUSSION
1. There is insufficient evidence to support the jurisdictional findings as to father
Father insists there is insufficient evidence to support the juvenile court's findings that, as a result of neglectful conduct on his part, J.R. was at substantial risk of serious physical harm or illness at the time of the October 6, 2010 jurisdictional hearing. He is correct.
A jurisdictional finding under section 300, subdivision (b) requires: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the child, or a substantial risk of such harm or illness. (In re David M. (2005) 134 Cal.App.4th 822, 829; In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) We review the matter for substantial evidence. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)
The allegations against father, sustained under section 300, subdivisions (b) and (j), state that J.R.'s mother and father "have a co-parenting conflict" which causes J.R. to feel neglected and abandoned, and causes him stress and trauma. The sustained allegations also state that the parents' conflict caused mother to make J.R. lie about father's wife and to feel the need to choose between his parents. As a result, the court found J.R. was prevented from having a healthy relationship with either parent, and that the conflict placed him at risk of physical and emotional harm. These findings do not support the exercise of dependency court jurisdiction over father.
Again, for jurisdiction under section 300, subdivision (b) to attach, there must be a showing of neglectful conduct, causation, and serious physical harm to a child or a substantial risk of such. (In re J.N., supra, 181 Cal.App.4th at p. 1022.) In In re J.N., children were harmed after their father drove drunk, which resulted in an accident. Both parents were intoxicated, made hostile threats to others and resisted arrest. (Id. at p. 1016.) There was no evidence either parent had an ongoing substance abuse problem, and any such conclusion would have been conjecture. (Ibid.) The court reversed a finding of jurisdiction under section 300, subdivision (b). It held that a single incident of neglect cannot bring a family within dependency jurisdiction; there must be reason beyond speculation to believe neglect will reoccur. (Id. at pp. 1025-1026.) In addition, the risk of harm must exist at the jurisdictional hearing. (In re R.M. (2009) 175 Cal.App.4th 986, 989.) "[D]ependency jurisdiction is not warranted under subdivision (b) if, at the time of the jurisdiction hearing, there no longer is a substantial risk that the child will suffer harm." (In re Carlos T. (2009) 174 Cal.App.4th 795, 803; In re J.N., supra, 181 Cal.App.4th at p. 1023.) This record contains no evidence of neglectful conduct by father that put J.R. at current or continued risk of harm at the time of adjudication.
It is not uncommon for children and parents to experience difficulties as a result of divorce or separation. Mother clearly has experienced and caused such difficulties. DCFS's investigation revealed that she has "unresolved issues regarding her failed relationship with [father], and his current relationship with his now wife . . . ." Because of her desire for retribution and to retaliate against father, mother instructed her sons to lie about their father's wife. She also tried to convince J.R. that his father had ceased to love him and had abandoned him for a new family.
Mother's behavior clearly disrupted J.R.'s life and caused him emotional detriment. But there is no evidence that father similarly contributed to his son's emotional detriment, willingly or negligently. Also, in contrast to mother—who actively engaged in a campaign designed to alienate J.R. from his father—there is no evidence father shared information or discussed with J.R. any matters regarding interpersonal conflicts he has had with mother, or the disruption to his visitation caused when she obtained an unnecessary restraining order against him. Jurisdiction under section 300, subdivision (b) requires a showing of a causal relationship between a parent's conduct and the child's serious emotional problems. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1136; cf. In re Christopher C. (2010) 182 Cal.App.4th 73, 81, 84 [upholding jurisdictional findings in a case in which both parents engaged a bitter custody battle tried to coach their children].) No such causal connection exists here.
Father is not responsible for mother's ill-advised behavior, nor can he be found neglectful because of her decision to urge the children to lie and to try to alienate them from father. DCFS's investigation revealed no evidence to indicate father played a role in causing J.R.'s fragile emotional state or that he engaged in conduct harmful to J.R. On the contrary, the evidence demonstrates that, when permitted access to his son, father was an attentive and protective parent—he welcomed his son and stepson into his home when mother was arrested or unable to care for the boys and enrolled them in school, and would have continued to provide them a home had mother allowed him to do so. There is also no evidence that father knew the maternal uncle had hit the boys and failed to protect them from that harm.
There is no indication that J.R. has suffered or will suffer emotional harm by virtue of father's actions or inactions. J.R. is not afraid to visit or to live with his father. He told DCFS he loves his father, and "[has] a lot of fun" at his house. The court found that parental conflict "caused [J.R.] to feel that he has to choose between his parents." But, the record does not support a finding that father played a role in creating that conflict or that he did anything to cause J.R. to feel the need to align himself with either parent.
Clearly tension remains due to issues arising from the parents' failed relationship. For mother, this tension is playing out in a custody battle which has spilled over into this dependency proceeding with fabricated allegations of abuse. Mother used her sons as leverage in her effort to retaliate against and obtain control over father. The juvenile court is not an appropriate custody battleground on which to wage a family law war. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1382; see also In re John W. (1996) 41 Cal.App.4th 961, 977 [in dependency case involving false accusation of sexual molestation, a "tense' atmosphere" created by bitter child custody dispute was insufficient ("hardly enough") evidence to support a finding of serious emotional damage under section 300, subd. (c)].) This record lacks sufficient evidence to support a finding that father's conduct placed J.R. at substantial risk of serious physical harm or illness.
2. Failure to place J.R. with father under section 361.2.
Father maintains the juvenile court committed additional error by not removing J.R. from mother's custody and placing him in the physical custody of father, the previously noncustodial, nonoffending parent. We disagree.
First, it is incorrect for father to characterize himself as a "noncustodial" parent. The juvenile court's "HOME OF PARENT(S)" placement order mirrors the longstanding family law order. The parents have shared physical custody; J.R. is with mother on weekdays, father has him from Friday evenings until midday Sunday, and each parent has the child for half the summer. Thus, the argument father is really advancing is that the court erred by not removing J.R. entirely from mother's care and placing him in father's sole physical custody.
Section 361, subdivision (c) states that "[a] dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds 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).)
A dependency court's decision at the dispositional phase regarding whether to remove a child from the physical custody of the parent with whom the child resided at the time the petition was filed must be made by clear and convincing evidence. (§ 361, subd. (c).) The standard of review for a dispositional order is substantial evidence. "[W]e review the record in the light most favorable to the dependency court's order to determine whether it contains sufficient evidence from which a reasonable trier of fact could make the necessary findings by clear and convincing evidence." (In re Mariah T. (2008) 159 Cal.App.4th 428, 441.)
Under section 361, removal is proper only if clear and convincing evidence shows there is a substantial danger to the child's physical health or emotional well-being if he remains at home, and there are no reasonable means to protect him short of removal. (§ 361, subd. (c)(1).) The juvenile court found that mother's unresolved issues regarding her failed relationship with father would not continue to endanger J.R. to the point that removal was required, so long as mother participated in counseling, parenting and anger management programs. The record supports that determination.
Father presumes J.R.'s physical safety remains in jeopardy in mother's care because the juvenile court made no provision to address the maternal uncle's physical abuse of J.W. But there is no evidence that the maternal uncle lives with or continues to have physical access to either J.W. or J.R. in the one-bedroom apartment mother and Cory obtained in August 2010 and now share with their new baby and the boys. Nor is there any evidence mother ever inflicted physical violence on either child, or that they would be unsafe in her custody. Without evidence that either boy remains at risk of such physical harm removal is improper.
We presume that the maternal uncle's inability to gain access to the boys constituted a significant component of DCFS's predisposition assessment that it lacked authority to detain J.R. from mother.
Mother has demonstrated a dearth of parenting skills. But removal of a child from parental custody is not proper simply because the court believes a parent should improve his or her parenting skills. Removal is proper only in the most egregious cases. "It is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent. The law requires that a child remain in parental custody pending the resolution of dependency proceedings, despite the problems that led the court to take jurisdiction over the child, unless the court is clearly convinced that such a disposition would harm the child. The high standard of proof by which this finding must be made is an essential aspect of the presumptive, constitutional right of parents to care for their children." (In re Henry V. (2004) 119 Cal.App.4th 522, 525.) That standard was not met here.
We find no fault with the juvenile court's disposition order which, according to the court, essentially mirrors an existing family law order and places J.R. in the "HOME OF [his] PARENT(S)," giving his parents shared physical custody—with mother on weekdays, and with father on weekends—and orders the parents to make an effort to "WORK OUT" a custodial arrangement "that gives [father] . . . more time" with his son.
The sustained jurisdictional allegations under section 300, subdivision (j), are also unsupported. In cases which a child's sibling has been abused or neglected as defined in section (a), (b), (d) or (i), jurisdiction may be asserted if there is a risk the child will be similarly abused or neglected. Because there is no evidence the boys remain or will be exposed to physical abuse at the hands of their maternal uncle, there is no evidence of substantial risk of abuse or neglect to support jurisdiction under section 300, subdivision (j).
DISPOSITION
The matter is remanded to the juvenile court with orders to reverse the order sustaining the allegations under Welfare and Institutions Code section 300, subdivisions (b) and (j) as to father. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.