Opinion
G057833
02-06-2020
In re J.P., et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. C.P., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 18DP1229, 18DP1230 & 18DP1231) OPINION Appeal from orders of the Superior Court of Orange County, Katherine E. Lewis, Judge. Affirmed in part, reversed in part, and remanded. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
* * *
In this juvenile dependency case, the juvenile court found the history of domestic violence between C.P. (Mother) and J.H. (Father), coupled with Father's physical discipline of their three young children, put the children at risk of serious physical harm. Based on these findings, the court assumed jurisdiction over the children and removed them from Mother's custody. Mother challenges the court's jurisdictional findings and dispositional order. For the reasons below, we affirm the court's jurisdictional findings, reverse the dispositional order, and remand the cause for further proceedings.
I.
FACTS
A. Family History
Mother and Father are the parents of J.P., D.P., and I.P., who are now ages 7, 5, and 3, respectively. Mother and Father were in a relationship for many years, but they never married.
According to Mother, in April 2017, when the children were ages 4, 2, and 7 months, Father choked Mother to the point she urinated on herself and almost lost consciousness, all in the presence of the children. The eldest child reportedly tried to intervene, but Father shoved her across the room.
Mother reported the incident to the police the next day and further alleged Father previously had slapped and kicked her. Father denied Mother's accusations and claimed Mother had scratched, kicked, and punched him numerous times before the children were born. Mother obtained an emergency protective order against Father, and Mother and Father separated.
In October 2017, Mother and Father obtained mutual restraining orders that will remain in effect until May 2020. The family court granted Mother full physical custody of the children and granted Father unsupervised visitation on Saturdays. B. Mother's Report of Sexual Abuse by Father
The family came to the attention of Orange County Social Services Agency (SSA) in November 2018, when Mother reported her two eldest children had disclosed Father was sexually abusing them during his Saturday visits by touching and orally copulating their genitals, taking videos of them naked in the bathtub, and digitally penetrating them. Mother further reported the children were suffering from nightmares and bedwetting.
Various social workers, Child Abuse Services Team (CAST) forensic investigators, and sheriff's deputies interviewed Mother, Father, and the two older children. The eldest child, J.P., refused to make eye contact or speak with the social worker, and when interviewed by a CAST investigator, she denied Father sexually abused her. The middle child, D.P., answered questions for the social worker and described Father's sexual abuse; however, he could not distinguish between the truth and a lie, and he looked at Mother when answering questions about the abuse. J.P. and D.P. both reported Father hit them all over with a sandal.
A social worker interviewed Father, who was cooperative, denied any domestic violence or sexual abuse occurred, and accused Mother of fabricating the abuse. Father mentioned he had informed Mother a few weeks earlier he would ask the family court for increased visitation, and he claimed Mother made the sexual abuse allegations after that. C. The Petition
SSA filed a juvenile dependency petition on the children's behalf. The petition alleged the children fell within the juvenile court's jurisdiction under Welfare & Institutions Code section 300 (§ 300), subdivisions (b)(1) and (d), based on Father's sexual abuse of the children (counts b-1 and d), Father's inappropriate physical discipline of the children (count b-2), and Mother and Father's history of domestic violence in the presence of the children (count b-3). Notably, the petition's allegations generally described Father, not Mother, as the offending parent, with the exception of a single sentence alleging domestic violence by Mother against Father before the children were born.
The allegation on domestic violence stated: "[Mother] and [Father] have a history of domestic violence in the presence of the children. In April 2017, law enforcement responded to an incident of domestic violence. The mother reported that the father put his hands around her neck and chocked [sic] her to the point that she almost lost consciousness and she urinated on herself. The mother also reported previous incidents of the father slapping her and kicking her in her vaginal area. The mother reported that the father has told the children he will come at night and kill the mother with knives. The father denied that domestic violence occurred during the incident on April 2017, but disclosed previous incidents of the mother scratching, kicking, and punching him prior to the birth of the children. The parents requested and each were granted mutual restraining orders, protecting each parent from the other until May 4, 2020."
At the detention hearing, the juvenile court ordered the children detained from Father and to remain with Mother, but also noted "coaching is a significant issue in this case and I want the [two older children] to get into therapy as soon as possible." The court then continued the jurisdiction hearing several times to allow the children to attend therapy. In the following months, Mother reported the children's nightmares and bedwettings continued, but decreased in frequency. D. The Jurisdiction Hearing
At the jurisdiction hearing, the juvenile court admitted into evidence SSA's various reports and heard testimony from a social worker who had interviewed the children. SSA's reports recommended the court sustain the petition as pled, offer enhancement services to Father, and place the children with Mother under a plan of family maintenance services. Mother also asked the court to sustain the petition in its entirety.
We suspect Mother assumed the juvenile court would place the children with her, given the petition largely described Father as the offending parent, and given SSA was recommending placement with Mother.
After oral argument, the juvenile court amended the petition by striking the sexual abuse allegations, but it sustained the remaining allegations about Father's physical discipline of the children and Mother and Father's history of domestic violence. In sustaining the domestic violence allegation, the court reasoned: "To me, B3 [the domestic violence allegation] is almost the gravamen of the case. It's about the parent's [sic] conflictual relationship being so toxic that they're bringing the children into it and putting the children in harms [sic] way because of their animosity toward one another."
The petition described Father's physical discipline as "inappropriate," but the juvenile court struck that word from the petition.
The juvenile court also expressed concern Mother was "coaching the children and fabricating the molest[ation] to avoid having the father have visits with the kids." It observed: "Initially, when this case started, Mother tells the social worker she's trying to stop visits with the father, but the [family] court will not give [her] another hearing. To me, this suggests that the mother is coaching the children." Mother's counsel inquired if the court was making a finding Mother coached the children, to which the court responded: "I have no allegation [in the petition] that says Mother coached the children. I cannot make a finding like that. I think there would be due process concerns."
Nevertheless, the court went on to order the children removed from Mother's custody, finding her coaching and her toxic relationship with Father created "a substantial risk of danger to the physical and emotional health of the children." The court explained: "There's actual evidence the children are suffering. There's evidence in the children's interviews. Night terrors, bedwetting. . . . [¶] . . . [T]he relationship between Mother and Father is so toxic that it is affecting the children."
At Mother's request, the juvenile court continued the disposition hearing so Mother could address the issue of coaching.
The children were placed in Orangewood Children and Family Center, and Mother was permitted monitored visitation. During those visits, Mother hugged and kissed the children repeatedly. While saying goodbye, the children cried, clung to Mother, and asked her not to leave. E. The Disposition Hearing
At the disposition hearing several weeks later, the juvenile court admitted into evidence SSA's addendum report, in which SSA changed its recommendation to removal from both Father and Mother, citing concerns about Mother's "ability to co-parent and the impact [her] choices may have on the children's emotional well-being and safety." The court also heard testimony from two social workers and the children's therapists.
After taking the matter under submission, the juvenile court declared the children dependents of the court, removed them from Mother, vested their custody with SSA for placement, and ordered family reunification services. In issuing its order, the court found "there is clear and convincing evidence . . . that returning the children to the mother . . . would put the children at substantial risk for emotional harm and physical harm." In the court's words: "the conflictual relationship between the mother and father is so severe that it devolved into Mother telling the children and coaching the children to such an extent that it had an impact on their physical well-being, as well as their emotional well-being." In support of its findings, the court also cited the children's ongoing nightmares and night terrors, their bedwetting episodes, their refusal to make eye contact or talk with social workers and therapists, and Mother's behavior, such as interjecting during and interfering with the children's interviews and pressuring the children to accuse Father of abuse.
II.
DISCUSSION
A. Standard of Review
Mother appeals from the juvenile court's jurisdictional finding and dispositional order, which we review under the substantial evidence standard. (In re J.C. (2014) 233 Cal.App.4th 1, 5, 6.) We must therefore "'determine if substantial evidence, contradicted or uncontradicted, supports'" the court's findings and order. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) Substantial evidence is "'evidence which is reasonable, credible, and of solid value.'" (In re Angelia P. (1981) 28 Cal.3d 908, 924.)
"'"In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court."'" (I.J., supra, 56 Cal.4th at p. 773.) B. Mother's Challenges to the Jurisdictional Finding
1. The Dismissal of the Sexual Abuse Counts
Mother first contends the juvenile court erred in dismissing the petition's allegations about Father's sexual abuse. According to Mother, their middle child, 5-year-old D.P, "has been consistent from the very beginning" regarding the abuse in all his interviews with social workers and therapists, and "there is no single piece of evidence" contradicting his accounts of abuse. Thus, contends Mother, Father "sexually abused [D.P.] as a matter of law." We are not persuaded.
In dismissing the petition's sexual abuse allegations, the juvenile court noted the children's various accounts of Father's alleged sexual abuse were inconsistent and had changed over time, and further observed there was evidence Mother had coached the children and fabricated the abuse to prevent Father from increasing his visitation with the children. The court also noted that although the children exhibited symptoms of emotional distress, the court could not discern whether those symptoms resulted from sexual abuse by Father or from "living with the pressure of having to lie in order to mollify Mother." The court repeatedly stated it was "struggling" with the allegations, it could not determine if any sexual abuse actually occurred, and on balance, it could not "find the allegations in B1 and D1 [the sexual abuse allegations] true by a preponderance of the evidence." The court explained: "the fact that I'm struggling with these allegations suggests that the burden has not been met regarding the sexual abuse allegations in B1 and D1."
As for D.P.'s disclosures in particular, the juvenile court discredited D.P.'s descriptions of abuse because D.P. was not always consistent. In the court's words: "three out of four counsel here indicate that [D.P.] has been consistent in his disclosures all along and that is just not true. And I'm not talking inconsistencies about time and place. I'm talking inconsistencies about what happened, who with; like, the actual content, the substance. . . . [¶] . . . [D.P.] tells the social worker that Father touches him and hits him, but he only says that while he's in the presence of his mother and while he's looking at Mother when the social worker is questioning him. . . . [¶] . . . [D.P.'s CAST interview is] internally inconsistent. He denies molest[ation]. Then he says it did happen. Then he changes what happened, where it happened, when it happened, and how often it happened. So, I mean, pretty much everything he says is inconsistent with what he said before."
The record supports the juvenile court's characterization of the evidence. For example, during D.P.'s first interview, the social worker determined he could not distinguish between a truth and a lie, and further observed D.P. looked at Mother when answering questions about sexual abuse. A few days later, when interviewed by the CAST investigator, D.P. at first described the sexual abuse in some detail, but then moments later said Father "no me hace nada" (does nothing to me).
Further, the substantial evidence standard requires us to leave credibility determinations and the difficult task of weighing inconsistent evidence to the juvenile court. We have "no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citations.] . . . It is not [our] function, in short, to redetermine the facts. [Citation.] Absent indisputable evidence of abuse—evidence no reasonable trier of fact could have rejected—we must therefore affirm the juvenile court's determination." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.)
"Here, as in many dependency cases, the case posed evidentiary conflicts. And, as is common in many dependency cases, this case obligated the juvenile court to make highly subjective evaluations about competing, not necessarily conflicting, evidence." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.).) Where, as here, the trier of fact concludes the party with the burden of proof did not carry its burden, the question for us as the reviewing court is whether the evidence compels a reversal as a matter of law. That is, was the evidence "(1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding'"? (Ibid.)
Our review of the record does not persuade us there was indisputable, uncontradicted, and unimpeached evidence Father sexually abused D.P. In short, "[t]his is simply not a case where undisputed facts lead to only one conclusion." (I.W., supra, at p. 1529.) We therefore affirm the juvenile court's dismissal of the sexual abuse allegations.
Mother contends SSA is judicially estopped from opposing her attacks on the dismissal of the sexual abuse allegations because SSA asked the juvenile court to sustain the petition's sexual allegation counts. We need not consider this argument because, either way, Mother's substantive challenge to the court's decision to dismiss the sexual abuse allegations fails for the reasons explained above.
2. Jurisdiction Based on the History of Domestic Violence
Mother next challenges the juvenile court's jurisdiction finding based on Mother and Father's history of domestic violence. According to Mother, Father's domestic violence against her in April 2017 (over two years before the jurisdiction hearing) cannot support jurisdiction because Mother immediately separated from Father and has since provided a violence-free home for the children.
As a preliminary matter, SSA contends we need not address Mother's challenge to the jurisdictional finding based on the parents' history of domestic violence (count b-3) because Mother does not challenge the juvenile court's other basis for finding jurisdiction — Father's physical discipline of the children (count b-2). (See In re Briana V. (2015) 236 Cal.App.4th 297, 309 ["we need not address jurisdictional findings involving one parent where there are unchallenged findings involving the other parent"].) But "we generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding . . . serves as the basis for dispositional orders that are also challenged on appeal." (In re Drake M. (2012) 211 Cal.App.4th 754, 762.) Because the court's jurisdictional finding on count b-3 served as the basis for the dispositional order that Mother also challenges on appeal, we address the merits of Mother's challenge to the court's jurisdictional finding on count b-3.
A child comes within the juvenile court's jurisdiction under section 300, subdivision (b), when the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness from her parent's failure or inability to adequately supervise or protect the child. "[I]t is necessary only for the court to find that one parent's conduct has created circumstances triggering section 300 for the court to assert jurisdiction over the child." (In re I.A. (2011) 201 Cal.App.4th 1484, 1491 (I.A.).) "For jurisdictional purposes, it is irrelevant which parent created those circumstances. A jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent, once dependency jurisdiction has been established. [Citation.] As a result, it is commonly said that a jurisdictional finding involving one parent is '"good against both. More accurately, the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent."'" (Id. at p. 1492.)
In sustaining the amended petition, the juvenile court found the children fell within its jurisdiction because Mother and Father's history of domestic violence and the ongoing toxicity of their relationship placed the children at risk of serious harm. Substantial evidence supports the finding as to Father. According to Mother, in April 2017, in the presence of the children, Father choked Mother to the point she urinated on herself and almost lost consciousness. Their daughter J.P., then age 4, tried to intervene, but Father shoved J.P. across the room. Mother and Father separated and obtained mutual restraining orders protecting themselves from one another through May 2020. The children, however, had ongoing contact with Father for a year and a half after the April 2017 incident, during which time Father allegedly told the children "he will come at night and kill [Mother] with knives." Even after the petition was filed and the children ceased contact with Father, they continued to suffer physical manifestations of emotional distress, like nightmares, night terrors, and bedwetting.
There is no evidence in the record Mother engaged in acts of domestic violence after the children were born.
On the whole, this constitutes substantial evidence the children were at a substantial risk of suffering serious physical harm from Father's failure or inability to adequately supervise or protect them, and therefore fell within section 300, subdivision (b). Cabined by the applicable standard of review, under which we must review the record in the light most favorable to the juvenile court's determinations and draw all reasonable inferences from the evidence to support the findings and orders of the court, we must affirm the court's assertion of jurisdiction over the children given the evidence of Father's history of domestic violence against Mother and J.P.
That is not to say, however, the juvenile court's rationale was flawless. In sustaining the domestic violence allegation, the court also relied in part on its belief Mother harmed the children or put them at risk of harm by coaching them to falsely report sexual abuse by Father. This was inappropriate. The petition did not allege Mother coached the children, and asserting jurisdiction based on unalleged conduct would violate Mother's due process rights. (See In re G.B. (2018) 28 Cal.App.5th 475, 487 [sustaining petition based on factual and legal issues not in petition violated parent's due process right].)
That said, because there was substantial evidence of domestic violence by Father, and because "it is necessary only for the court to find that one parent's conduct has created circumstances triggering section 300 for the court to assert jurisdiction over the child" (I.A., supra, 201 Cal.App.4th at p. 1491), we affirm the jurisdictional finding based on that domestic violence. And in any event, Mother does not challenge the juvenile court's other basis for asserting jurisdiction — Father's physical discipline of the children. We therefore affirm the court's assertion of jurisdiction and turn to the merits of its dispositional order. C. Mother's Challenges to the Dispositional Order
Mother next challenges the juvenile court's dispositional findings and order under Welfare & Institutions Code section 361 (§ 361), in which the court removed the children from Mother after finding a substantial risk of future harm to the children if the court returned them to Mother.
Under section 361, after a minor is adjudged a dependent of the juvenile court under section 300, the court may limit the parents' control over the child. (§ 361, subd. (a).) The statute further specifies, however, that the child shall not be taken from her parents' physical custody unless the court finds by clear and convincing evidence "[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), italics added.)
1. Mother's Statutory Interpretation Argument
Mother first contends section 361 does not permit removing a child from her parent "solely for emotional damage" unless the juvenile court bases its jurisdiction finding at least in part on section 300, subdivision (c), which provides a child comes within the court's jurisdiction if the child is suffering, or is at substantial risk of suffering, serious emotional damage because of the parent's conduct. The logical extension of Mother's argument is a court cannot remove a child from her parent "solely for emotional damage" under section 361 if the court asserted jurisdiction based on one of the other subdivisions of section 300 (e.g., serious physical harm or illness (§ 300, subds. (a), (b)(1)), sex trafficking (id., subd. (b)(2)), or sexual abuse (id., subd. (d)), etc.), but not on subdivision (c)(1) (severe emotional damage).
This argument, which we review de novo, fails legally and factually. To start, a plain reading of section 361, subdivision (c)(1), does not support Mother's interpretation of the statute. Nothing in section 361 requires a jurisdictional finding of emotional damage under section 300, subdivision (c), as a prerequisite for removal based on danger to the child's emotional wellbeing. We are aware of no case authority adopting Mother's interpretation of section 361, and Mother cites none.
Further, the juvenile court did not remove the children from Mother's custody "solely for emotional damage" as Mother suggests, but rather because it found returning the children to Mother "would put the children at substantial risk for emotional harm and physical harm." Mother's statutory interpretation argument thus falls flat.
2. Mother's Sufficiency of the Evidence Argument
Mother next contends there was insufficient evidence removal was the only reasonable way to protect the children from Mother. We agree.
Under section 361, subdivision (c)(1), children may not be removed from their home unless "there are no reasonable means" for protecting the children other than removal. To aid the court in determining whether "reasonable means" exist for protecting the children short of removal, the California Rules of Court require the petitioner (here, SSA) to submit a social study that includes a "discussion of the reasonable efforts made to prevent or eliminate removal." (Cal. Rules of Court, rule 5.690(a)(1)(B)(i).)
No discussion of reasonable efforts appears in the record in this case. This is not surprising because, up through and during the jurisdiction hearing, SSA had recommended the children remain in Mother's custody. Although SSA submitted an addendum report after the jurisdiction hearing and before the disposition hearing recommending the children remain in foster care, citing concerns about Mother's "ability to co-parent and the impact [her] choices may have on the children's emotional well-being and safety," that report fails to include the requisite "discussion of the reasonable efforts made to prevent or eliminate removal." (See Cal. Rules of Court, rule 5.690(a)(1)(B)(i).)
The juvenile court also failed to carry out its duties in deciding to remove the children from Mother. Section 361, subdivision (e), required the court to (1) "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and (2) "state the facts on which the decision to remove the minor is based." Here, the court found "[r]easonable efforts were made to prevent and eliminate the need for removing the children from their home," but the court did not "state the facts" supporting its conclusion.
"'[O]ur dependency system is premised on the notion that keeping children with their parents while proceedings are pending, whenever safely possible, serves not only to protect parents' rights but also children's and society's best interests.' [Citation.] The requirement for a discussion by the child welfare agency of its reasonable efforts to prevent or eliminate removal [citation] and a statement by the court of the facts supporting removal [citation], play important roles in this scheme. Without those safeguards there is a danger the agency's declarations that there were 'no reasonable means' other than removal 'by which the [children's] physical or emotional health may be protected' and that 'reasonable efforts were made to prevent or to eliminate the need for removal' can become merely a hollow formula designed to achieve the result the agency seeks." (In re Ashly F. (2014) 225 Cal.App.4th 803, 810 (Ashly F.).)
The juvenile court therefore "committed prejudicial errors in failing to follow the procedures mandated by the Legislature and the Judicial Council for determining whether the children needed to be removed from their home. . . . '[R]easonable means' of protecting the children that should at least have been considered include unannounced visits by [SSA], public health nursing services, [and] in-home counseling services." (Ashly F., supra, 225 Cal.App.4th at p. 810.)
Accordingly, we reverse the juvenile court's dispositional order and remand the cause for a new dispositional hearing in conformity with the statutes and California Rules of Court.
III.
DISPOSITION
The juvenile court's dispositional order is reversed, and the cause is remanded for further proceeding in accordance with law.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.