In re David W. CA2/7 ( 2013 )

Filed 6/17/13 In re David W. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re DAVID W., a Person Coming Under B243483
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK85636)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.W.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Jacqueline
Lewis, Juvenile Court Referee. Affirmed.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
Marissa Coffey, under appointment by the Court of Appeal, for Respondent
David W. (minor).
_______________________
INTRODUCTION
In February of 2011, the juvenile court declared five-year-old David W. a
dependent pursuant to Welfare and Institutions Code section 300 and ordered the parents
to share custody of the child.1 Approximately one year later, David‟s therapist reported
that the parents‟ ongoing, combative relationship had caused the child severe emotional
distress, ultimately culminating in a psychiatric hospitalization. Based on this new
information, the juvenile court ordered the child detained and the Los Angeles County
Department of Children and Family Services (DCFS) filed a section 342 petition;
following a contested adjudication and disposition hearing, the court sustained the
petition and detained the child.
Father appeals the juvenile court‟s jurisdictional and disposition orders, arguing
that: (1) the court‟s orders were not supported by substantial evidence; (2) the court
exceeded its authorities by ordering DCFS to file a section 342 petition; and (3) the
juvenile court violated the time limitations set forth in section 352, subdivision (b). We
affirm the court‟s orders, concluding that although the juvenile court violated section 352,
father suffered no prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Section 300 Petition
1. Summary of the initial section 300 petition and detention
a. Summary of initial referral and DCFS investigation
L.W. (father) and J.F. (mother) are the parents of David W., who was born in
2005. Mother was previously married to M.B., with whom she had a daughter, V.F., who
was born in 1996.
On November 15, 2010, DCFS received a referral alleging that father placed
David, then five, and V.F., then 14, in a dangerous situation involving an automobile.
1
Unless otherwise noted, all further statutory citations are to the Welfare and
Institutions Code.
2
The report indicated that, on November 9th, M.B. was inside his home gathering items to
load into mother‟s pick-up truck. David and V.F. were both sitting in the vehicle, which
was parked in the driveway. While M.B. was inside the house, father entered the vehicle
and turned on the engine. Upon hearing the engine, M.B. ran outside and jumped into the
open bed of the truck. Father began to drive the vehicle down the street with M.B.
banging on a rear window, yelling at father to stop. Father eventually stopped the truck,
“exchanged words with [M.B.]” and then drove back to M.B.‟s residence. After M.B.
and V.F. exited the vehicle, father and David drove away. M.B. reported the incident to
the police.
On November 30, DCFS interviewed mother, M.B., David and V.F. regarding the
incident. Mother reported that M.B. had called her immediately after the incident and
said that he thought father was trying to kill him by throwing him off the back of the
truck. Mother further reported that V.F. was visibly upset by the incident and that David
was crying and complaining of abdominal pain. According to mother, neither child had a
seat belt on when the father began driving the vehicle.
Mother told DCFS that her relationship with father had been “on and off for about
eight years” and had “consisted of domestic violence in a physical, sexual, verbal and
emotional manner.” Mother stated that during a recent trip to Israel, father had head-
butted her twice in the forehead. On prior occasions, he had allegedly forced mother “to
engage in sexual activity against her will” and threatened her life.
During his interview with DCFS, M.B. stated that he had feared for his life while
on the back of the truck, explaining that both children could see him “hanging from a
bar” and that V.F. began to cry and shake hysterically, which then caused David to
become upset. V.F. provided similar statements, informing DCFS that she was sitting in
the backseat of the vehicle when father opened the driver side door, entered the truck and
began driving away. V.F. stated that she saw M.B. (her father) holding onto the back of
the vehicle, yelling at father to stop. V.F. feared that father was trying to kill M.B. After
traveling several blocks and making multiple turns, father stopped the truck. Shortly
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thereafter, V.F. realized “what had happened” and became hysterical. She reported that
David was also upset and crying.
David reported that he was sitting in the truck and “was really scared” because
M.B. was “screaming” from the “back.” David also reported that his father could be
“really mean” and that, sometimes, he was “scared” of father. David explained that, on
one prior occasion, father and mother were pulling each of his hands in separate
directions and he thought, “„I can‟t be two people, I‟m only one. I can‟t go two places.
Almost like they were trying to split me in half.‟”
On December 2, 2010, DCFS interviewed father, who denied M.B.‟s version of
the incident. Father alleged that he and the mother owned the truck together, and that he
had been trying to get it back for a long period of time. Father asserted that, after
entering the vehicle, he asked V.F. to get out, but she refused to do so. Father alleged he
“pulled the car out of the driveway into the alley way and drove approximately two or
three homes before realizing [M.B.] was in the back of the car.” Father claimed that
“because [M.B.] was so upset he upset [V.F.] which then upset . . . David.” Father also
stated that he believed mother had “coached” David on what to say about the incident.
Father denied ever having been violent with mother and claimed that she had been
violent with him. He also reported that mother had previously scratched his vehicle,
broken into his home and been charged with a DUI. According to father, mother was an
alcoholic and employed as a “call girl” or “prostitute.” When DCFS asked mother about
these allegations, she admitted that she had scratched father‟s car “out of anger” and had
“trespassed” into his house to retrieve some personal belongings. She also admitted that,
in 2003, she was found to be driving with a blood alcohol content of .08 and was charged
with “reckless driving.” She denied being a call girl or a prostitute.
DCFS also interviewed a neighbor of M.B. who was in her house at the time of the
incident. The witness stated that she heard a truck “screeching” around a turn, and then
saw the truck stopped in front of her house, with a man sitting in the driver‟s seat and two
children in the passenger seats. A second man was yelling that he was going to call the
police.
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b. Summary of DCFS’s section 300 petition and temporary
detention hearing
On December 6, 2010, DCFS filed a petition alleging that David fell within the
jurisdiction of the juvenile court pursuant to section 300, subdivisions (a) and (b). The
petition included an identical allegation under each subdivision asserting that father had
placed the child at risk during the driving incident and that the parents had both engaged
in “violent altercations in the child‟s presence.”
DCFS filed a detention report in support of the petition containing a summary of
its initial investigation. The report concluded that David was “at substantial danger” of
physical and emotional harm if left in the parents‟ custody and recommended that he be
removed from their homes. At the detention hearing, the court found there was prima
facie evidence that David was a “a person described by section 300 subdivisions (a) and
(b) and that continuance in either parent‟s home would be contrary to the child‟s
welfare.” The court vested temporary custody of David in DCFS and granted the parents
reunification services and monitored visits.
2. Jurisdictional and disposition report
On December 20, 2010, DCFS filed a jurisdictional and disposition report
summarizing additional interviews that it had conducted with David, V.F., father, mother,
M.B. and an associate of father. Contrary to the statement made in his initial interview,
David told DCFS he was “not scared” during the incident and that nobody was yelling.
According to David, M.B. had been “flying on the car because he wanted to borrow it but
my dad said he couldn‟t.” David also stated that he had never been physically disciplined
by his parents and had never seen them engage in any violent altercations.
V.F. reported that father entered the car, smiled at David and then turned on the
engine. While he was driving, V.F. could clearly hear M.B. saying “stop the car.”
Father, however, smiled and “giggled,” and started to drive faster, while “turning and
turning again.” During this time, the children were not wearing seat belts. V.F. stated
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that she was “hysterical” during the incident, but that David just had a “shocked
expression.”
Father denied that he had driven in a dangerous manner. He claimed that he had
only driven about 200 feet, without turning or “driv[ing] fast.” He also reported that the
tires of the vehicle screeched because “there was a screw in the tire and „the low pressure
it creates a screech with a mild turn because there is not enough air in the tire.‟” Father
further reported that the engine was on for less than 60 seconds and that “[t]he only chaos
was because [M.B.] was screaming on the truck.” He alleged neither of the children were
afraid and denied that he had swerved the vehicle or that he had been trying to eject M.B.
from the bed of the truck. He also alleged that David was wearing his seatbelt, but could
not recall whether V.F. was wearing her belt.
Father also told DCFS that mother had a problem with alcohol that was
detrimental to David. Father provided DCFS a declaration in which he repeated his
allegations that mother was a prostitute, that she had broken into his home and that she
had scratched his car. He also submitted a letter from David‟s private school stating that
mother had repeatedly brought the child to school late. Father submitted numerous
additional declarations attesting to his character and parenting skills.
In her interview with DCFS, mother stated that she had been married to M.B.
between 1996 and 2001 and then met father in 2003. Mother lived in father‟s apartment
for five years and continued to receive financial support from him. Mother alleged that
during a recent trip to Israel, she found father talking on the phone to another woman and
became upset. Mother left the hotel and, when she returned, father pulled her hair, head-
butted her twice and then pretended he was going to hit her with his fist. Mother stated
that father had never actually raped her, but had demanded to have sex with her. Father
denied all of these allegations.
M.B. told DCFS that, after he jumped into the cab of the truck, the vehicle began
accelerating and turning sharply to the right and then to the left. He stated that he was
screaming and could see both children in the car, who looked scared and were not
wearing their seatbelts. When father stopped the car, M.B. told him he was going to call
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the police. V.F. was crying and David appeared to be in shock. M.B. also said he would
have been ejected from the rear of the vehicle if he had not grabbed onto a railing. Father
suggested that he and M.B. talk about the incident over coffee. M.B., however, elected to
call the police.
Finally, an associate who had traveled with father to retrieve the vehicle told
DCFS that he saw M.B. get into the back of the truck, then knock on a window, which
caused father to immediately stop. The associate alleged that he had not seen the vehicle
suddenly start, stop or swerve, but admitted that he had lost sight of the vehicle before it
came to a complete stop.
DCFS reported that David had been placed in a foster home and recommended
that the court declare him a dependent and provide reunification services for both parents.
At a December 22, 2010 hearing, David‟s attorney requested that he remain in the foster
home, where he had been doing well. The court ordered David to remain in the foster
home and continued the matter.
3. The parents’ mediated agreement pleading no contest to the petition
On February 2, 2011, the parents entered into a mediated agreement pleading no
contest to an amended section 300 petition that contained a single allegation under
subdivision (b): “The child‟s parents have exposed the child to the risk of physical and
emotional harm by engaging in high conflict behavior on an on-going basis, including at
times in the child‟s presence. Such conduct includes but is not limited to an incident in
November 2010 when the child‟s father erratically drove a vehicle belonging to both
parents while David and another child were in the truck. David was not properly secured
in appropriate safety restraints, and the incident was frightening. On a different occasion,
in the child‟s presence the mother damaged the father‟s vehicle by intentionally
scratching it with a key. The parents‟ endangering and detrimental conduct places the
child at risk of physical and emotional harm.”
Pursuant to the mediated agreement, the court ordered the parents to share custody
of David under a pre-negotiated, written schedule. The parents were also ordered to
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complete parenting classes, participate in individual and conjoint “co-parenting”
counseling and ensure that David attend individual therapy. Father was also ordered to
complete an anger management class and mother was ordered to participate in domestic
violence victims counseling. The court set a section 364 status hearing for August 10,
2011.
4. Section 364 status reviews
a. August 2011 status review
On August 8, 2011, DCFS filed a status review report indicating that David had
attended seven individual therapy sessions with Angela Bissada, who began treating the
child in March of 2011. In a progress letter written in May of 2011, Bissada informed
DCFS that David had “expressed his belief that all parents „“fight and yell” and his
mom and dad never stop fighting because they are “mom and dad.”‟” David had
also “recalled memories of ongoing parental conflict,” which “heighten[ed] his
anxieties[,] . . . . distorted [his] concept of adult relationships” and caused him to be
“quite confused and intense in his parents‟ presence.” Bissada recommended that the
parents refrain from expressing their anger toward one another in the child‟s presence.
DCFS‟s report stated that, during the supervision period, the parents had “focused
their energies on past incidents, their mutual resentment and anger and hostility as it
pertains to their ongoing challenges.” The parents, however, had also made “concerted
efforts to curtail their anger in the presence of [David],” which caused the child to
“demonstrate[] a more positive outlook.” DCFS also reported that the child indicated he
enjoyed his time with mother and father.
DCFS further reported that mother had been attending weekly individual therapy
and was almost finished with a domestic violence counseling class. Mother informed
DCFS that these treatment programs had provided her insights into how to identify her
anger and improve her communication with father. Father had also been attending
individual therapy and completed an anger management course. His individual therapist,
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Natalie Cohen, told DCFS that father had “admitted to making a mistake in the past and
is currently making progress.”
In its assessment and evaluation, DCFS concluded that although the “parents
continue to experience a certain level of discord and blaming behavior, they continue to
make concerted effort in their respective treatment programs. . . Despite this fact, the
parents continue to have significant problems with their communications and co-
parenting issues.”
Shortly before the hearing, DCFS submitted a “last minute information,” which
included an additional progress letter from Bissada and a progress letter from the parent‟s
conjoint therapist, Ian Russ. Bissada‟s letter stated that, “[a]t the outset of treatment,
David would report witnessing multiple conflicts between his parents which involved
yelling, screaming, his being physically pulled between them and of police involvement.”
Bissada reported that, over the prior several weeks “David‟s direct expression of
confusion, anxiety and sadness as to his parents‟ conflict ha[d] decreased . . . .,
expressing [only] that [parents] are not fighting as much, that they are not friends and that
he does not think they ever will be.”
Bissada‟s letter indicated David had begun expressing his feelings through
pictures and stories, which had “recurring themes of a child having to choose between
two parents who live in different homes, of parents being placed in jail and the child
having to help them escape, of many explosive battles between „bad and good guys‟
wherein in the endings frequently involve the „bad guys or horrible sharp clawed
monsters . . .‟, destroying the entire world and all of its inhabitants.”
Bissada further stated that although the parents were making an effort not to
engage in “overt conflict in David‟s presence, . . . his current focus on story themes of
battles between bad and good likely project his continued confusion and fear of his
parents‟ relationship becoming catastrophic.” Bisada believed, however, that with
continued “effort not to engage with one another during visit transitions, to not speak by
phone in David‟s presence or to speak about the other parent negatively in his presence,
9
David will develop a more stable outlook on the future” and “gain a more age appropriate
and realistic understanding of conflict resolution.”
Ian Russ‟s progress letter reported that the parents had attended approximately 30
sessions of conjoint therapy, which began in January of 2011. Russ stated that the
parents appeared to be “more cooperative with each other and more able to work in
David‟s best interest.” Mother, however, was still having “difficulty putting David‟s
interests in front of her own wishes,” insisting, for example, that if David was to receive
more visitation time with father during Father‟s Day, then she must receive back the
same amount of time at some point in the future. Russ reported that the tension and
conflict had been reduced significantly, even during “face to face exchanges.” Parents
had also improved at “making joint decisions in David‟s best interest,” improved their
communication skills and reduced their impulsivity, although mother was reported to be
“considerably more impulsive than father.”
b. November 2011 status review
In November of 2011, DCFS submitted a status review report indicating that
David had seen Bissada only four times during the three month supervision period.
According to the father, “the holidays made it difficult for him to bring David.” Bissada
provided a progress letter stating that parents told David they would never live together in
the same house, which made him “sad but glad that they are not fighting as much as they
used to.” Bissada further reported that there had been a “significant decrease in David‟s
dictating and illustrating stories . . . that involve themes of conflict between „bad and
good guys‟, jail and destruction. He no doubt benefits emotionally from his parents
ability to co-parent and not engage in conflict in his presence or during phone
exchanges.” Bissada further reported, however, that “[m]ore recently” the parents had
“trouble maintaining a cordial co-parent relationship,” which caused David to be “afraid
to sleep alone.” Mother told Bissada that David had been sleeping in her bed, but that
she was trying to stop him from doing so.
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Russ also provided a progress letter, which stated that he had met with the parents
only four times during the three-month supervisory period. Russ stated that, overall,
“both parents report that they basically co-parent well, and the frequency and intensity of
their conflicts are greatly reduced from when they began the treatment and even from this
past spring.” Like Bissada, however, Russ also reported that the parents‟ conflict had
recently “increased.” According to Russ, parents had briefly “resum[ed] their romantic
relationship . . . [for] between 3 and 7 days [and then] mutually broke up.” Mother was
“extremely upset that they broke up” and they “both accuse[d] each other of being
manipulative.”
Russ‟s letter also stated that the parents had gotten into an argument concerning
David‟s birthday party, which caused mother and David to become upset. Mother then
sent text messages to father stating that she was going to tell DCFS about their argument;
father allegedly responded by telling her that this would only escalate the problems,
which would be harmful to David. When Mother told father she still intended to contact
DCFS, father threatened to give pictures to Russ “proving she was continuing her
involvement in prostitution.” Russ reported that “father [later] admitted that he
threatened mother with showing [Russ] the pictures but not because of mother‟s
continued escalation.” Father said he had “threatened to do this when mother was
demanding that he give her more than $2000/month [in child support] that he currently
gives her. He said that he threatened her to show that mother had income she was not
reporting.” Mother alleged such threats were “emotionally abusive[,] . . . violent” and
demonstrated that parents were engaged in a continuing “„Cycle of Violence.‟”
Russ also reported that mother had become frustrated with him during the therapy
sessions because she did not believe he had adequately acknowledged father‟s behavior
was a continuation of a “cycle of violence” or that father had previously engaged in
domestic violence. Russ stated that he had informed mother that, over the last four to
five months, it appeared she had done things to provoke father and that father had not
responded in an angry way. Russ also clarified in the letter that “it was [his] assessment
that when mother and father were together in the past there was domestic violence and
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that the incident which brought this family to the attention of the Court was clearly part
of the domestic violence in which they both participated.” Russ also reported that
David‟s principal reported that mother frequent failed to bring the child to school and
often brought him in late.
Russ concluded by stating that although “the frequency and intensity” of the
parent‟s “conflict . . . [was] significantly less than [it was during the] past spring,
mother‟s anger [was] increasing and she [was] doing things to provoke father.” Father
normally would not respond, but “sometimes, as in the case of his threatening to show
[Russ] pictures, he did respond.” Russ reported that, overall, both parents were “more
accommodating, and accuse[d] the other less than before.” Father was “more
accommodating . . . and less likely to complain about medium and minor issues than . . .
mother.” Russ also expressed “concern[] that without both of them knowing that DCFS
and the Court are watching them, the disagreements and conflict are likely to increase.”
He recommended that DCFS retain jurisdiction for three to four more months.
Based on the information provided by Bissada, Russ and the parents‟ individual
counselors, DCFS concluded that the parents had “exhibited positive progress overall as
it pertains to their communication in that they compromise better and that they have made
a concerted effort to resolve challenges that include but are not limited to agreeing to
visitation schedules and David‟s overall general care.” DCFS further concluded,
however, that because some of the therapists expressed their belief that the parents‟
conflict had shown signs of increasing, the court should retain jurisdiction for an
additional three months of supervision. The court set an additional section 364 status
review hearing for May 16, 2012.
B. Fathers’ Section 388 Petition and DCFS’s Section 342 Petition
1. Summary of father’s section 388 petition
On February 15, 2012, father filed an emergency section 388 petition seeking
sole custody of David, with monitored visits for mother. The petition was
accompanied by a declaration in which father stated that, during a conjoint therapy
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session on February 9, 2011, mother announced David had recently made “suicidal
comments” and that he had been making similar comments for “a long time.” The
declaration stated that, immediately after the conjoint therapy session, David met with
Bissada, who then wrote the parents an email summarizing her session with the child. In
the email, which was attached to the declaration, Bissada reported that David had said
“he wished he had never been born and that he doesn‟t want to be in this world.” David
also stated that “if he was going to try to be out of this world he would use a knife . . .
from the kitchen” and that he wanted to stay six-years-old “forever so that he never has to
worry about money.” Bissada recommended that the parents keep David away from
sharp objects as a precautionary measure and told them not to discuss the matter with
David until they were all able to meet together.
Fathers‟ declaration stated that, after receiving the email, he was driving in his car
and permitted David to call mother. Father alleged David placed the call on speaker
phone and father heard mother, who was speaking in Russian, refer to Bissada by name
three times. Father believed mother was “violating what Dr. Bissada had just requested
that we do” and disconnected the call. He later sent mother an email “regarding her
violation of Dr. Bissada‟s requests to keep our son safe.” The email was in all capital
letters, and accused mother of having attempted to “steer” her conversation with David
toward the meeting with Bissada.
Father‟s declaration also reported that, after receiving Bissada‟s email, he brought
David to DCFS, which then transported the child to “Kaiser Hospital as a result of his
suicidal ideation.” David remained in the hospital until February 15. The declaration
stated that, during the visits, David became more anxious when mother visited and that
mother had not respected the staff‟s requests to leave at the end of visitation hours and to
refrain from speaking to David in Russian.
The declaration also accused mother of a wide variety of misconduct during the
past several months, which included refusing to bring David to see Bissada, refusing to
bring the child to school on time and allowing the child to sleep in her bed. Father also
asserted that he believed mother suffered from “serious depression” and had “talk[ed]
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about her own suicide,” which she might “intentionally or unintentionally express to
David.”
On February 16, 2012, the court heard father‟s emergency section 388 request and
told the parties that it intended to schedule a full hearing because it did not have enough
information to take any action. County Counsel agreed with the court‟s proposal, noting
that DCFS did not believe mother had been neglectful and was concerned that “father‟s
main concerns may be . . . more with custody . . . .and not paying child support than with
David‟s safety.” David‟s attorney also agreed that the matter should be set for a full
hearing, stating that the child “seemed to do much better when he was in a foster care
than he was doing with the parents.” David‟s attorney did not object, however, to
allowing the child to stay with father until the hearing, explaining: “Honestly, I can‟t tell
who [is] worse, quite frankly, the mother or the father. I am concerned, however, that if
there is any truth at all to the indications that the mother would be expressing the suicidal
type of thoughts that this does put David even at even more severe risk. And, again, this
would not be a permanent request . . . It would be just until we could come back to get an
update from Dr. Russ, as well as Dr. Bisadda, about what happened in the interim.”
The court left all of its prior orders in place, set a progress hearing for February
24, 2012 and set a hearing on the section 388 petition for March 16, 2012.
2. February 24th progress report hearing and filing of the section 342
petition
a. DCFS’s status reports
Prior to the February 24th progress hearing, DCFS submitted an interim report
regarding the child‟s hospitalization and the events that had followed. The report stated
that Bissada believed David‟s “psychological well-being” had been “hugely
compromised” as a result of his parents‟ relationship and that parents were “unable to
focus on their child‟s well-being given their ongoing efforts to berate one another, while
using their son as a pawn to further their respective agendas.” DCFS also reported that it
appeared “each parent [wa]s adamantly contending to obtain custody of their son to the
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exclusion of the other, as a result, [Bissada] reports that the child becomes increasingly
anxious and thereby continues to decompensate. Most recently, the child had been
diagnosed with major depression and anxiety disorder.”
DCFS also explained that, on February 21, 2012, it had facilitated a “team
decision-making” meeting (TDM) with Bissada, Russ, the parents, a TDM facilitator and
several social workers. The DCFS report stated that although “the parents ultimately
agreed to maintain close supervision of the child, throughout the course of the 2 hour
meeting they were unable to focus on his well-being given their determined efforts to
berate and blame one another for past issues. Ultimately the meeting was concluded as
the parents were unable to refrain from belittling one another to the extent that they
ignored all attempts to direct their attention to their sons needs.”
The TDM facilitator expressed the following observations after the meeting: (1)
“there appears to be a lack of appropriate communication between the parents including
inappropriate comments made about one another to the child”; (2) “the child appears to
be under a lot of stress and is preoccupied with issues as related to their parents‟ ongoing
conflict”; (3) the “parents continue to blame each other including ongoing comments
about their past and are not able to focus on the child‟s mental health needs and appear
clueless as to how their conflict impact their child, to the point of hospitalization”;
(4) “Mother feels the service providers are siding with father given that he is the one who
pays the fees”; (5) the parents “required continued redirecting during the TDM and were
still unable to focus their energy on their child‟s needs. Conversely, they continued to
blame each other throughout the meeting which was prematurely concluded as a result.”
In its “assessment/evaluation,” DCFS concluded that although the parents had
been cooperative and were in compliance with the court-ordered case plan, they
“appear[ed] to be making no movement toward resolving their highly conflictive
relations, which is dangerously toxic at this point.” The social worker who wrote the
report, Karla Hosch, noted that she “continued to receive a daily barrage of e-mails from
mother and father wherein they continue be invested in petty conflicts. [sic.] The DCFS
staff and mental health professionals are exhausted and hugely frustrated by the parents‟
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longstanding and extreme conflict which has to date not been alleviated by various
therapeutic modalities, including but not limited to their past participation in individual
and conjoint therapy . . .”
Immediately prior to the hearing, DCFS submitted a “last minute information”
accompanied by progress letters from Bissada and Russ. Bissada‟s letter, dated February
22, 2012, reiterated that David had expressed “suicidal ideation stating that he did not
want to live in this world and could use a kitchen knife to kill himself.” Bissada asserted
that it was “clear that [parents‟] ongoing, severe deficiency in the ability to appropriately
co-parent David has contributed greatly to [David‟s] emotional distress culminating in a
psychiatric hospitalization.” Bissada reported that although she had not witnessed father
acting inappropriately in the presence of child, mother had “repeatedly spoken negatively
of [father] in front of David” and “shared information with [him] that [Bissada] deem[ed]
inappropriate,” including her financial problems and the sadness she felt when separated
from David. Mother also refused to make David sleep in his own bed, had refused to
bring the child to therapy and failed to bring the child to school on time.
Bissada‟s letter also stated that, “on several occasions, [David had] expressed his
wish that his parents are [sic] friendly with one another and that they stop fighting.
Unfortunately, he is instead exposed to his parents‟ chronic conflict as well as to
information that is inappropriate and confusing. I have no doubt that his statement, „I do
not want to live in this world‟, and resultant suicidal ideation is in reaction to the
continued war between his parents. David‟s ability to cope, problem solve independently
and function at an age appropriate emotional and psychological level, has been
detrimentally affected by his current environment. . . Regardless of treatment, he will
continue to suffer emotional harm as long as [mother] refuses to follow recommendations
on his behalf and as long as his parents are unable to co-parent effectively and to shield
him from their conflict.”
Russ‟s progress letter, also dated February 22, 2012, stated that the parents‟
conflict “continue[d] to grow.” Russ believed that father had generally followed his
suggestions regarding how to minimize the parents‟ conflict, but that mother had “not
16
been cooperative.” According to Russ, mother had been late to therapy sessions, refused
to discuss certain topics and was interfering with David‟s schooling. Russ reported that
father stated he did not believe David was “physically safe while in [mother‟s] care”
because he thought mother was “suicidal and that if she committed suicide she would
likely kill David as well.” Russ told father he had not seen mother engage in “any
behavior that indicated that she was suicidal or presented a physical threat to David in
any way.”
Russ also reported that, on two occasions, he had become “extremely exasperated
with [mother] and lost [his] therapeutic position.” On each occasion, Russ yelled at
mother because she was “making big deals out of small issues,” which was exactly the
type of behavior that was causing the parents‟ on-going conflict.
b. February 24th progress report hearing
At the February 24th hearing, the court announced that, based on the information
it had received from DCFS, its tentative ruling was to detain David from the parents.
County Counsel indicated that DCFS agreed with this position, stating “given what is in
the last minute and the report, the fact that both parents have ongoing, quote „severe
deficiency in the ability to appropriately co-parent David . . . culminating in a psychiatric
hospitalization,‟ I do think it would be a wise decision to give this child an emotional
reprieve from his parents.” David‟s counsel also agreed with the recommendation.
Father‟s counsel believed David should be left in father‟s custody, arguing that a
“careful reading of [Russ and Bissada‟s] letters suggests that [father] has done what he‟s
supposed to do” and that the “mother continues to say inappropriate things to the child.”
Counsel added, however, that if “that‟s what the Court deems is appropriate, he wants
whatever is best for his son.” Although mother disagreed with father‟s characterization
of the evidence, she also indicated that she wanted whatever the court believed was best
for David.
The Court found that continuance in the parents‟ home would be contrary to
David‟s well-being and ordered him removed. The court also ordered DCFS to make
17
every effort to place David in the same foster home he had been in during his initial
detention, noting David had done “very, very well, in fact better than at any other time in
this case, when he was in [that] foster home.”
Father‟s counsel stated that he wanted to set the matter for “a trial without waiving
time.” The court thereafter ordered that the “no time-waiver adjudication date” would be
March 16, the same date set for father‟s section 388 petition, and ordered “the
Department to file a petition within 72 hours.”
3. Section 342 petition and jurisdictional report
On February 29, 2012, DCFS filed a petition under section 342 alleging that David
was a person described in section 300, subdivision (c).2 The allegation in support of the
petition alleged, in part, that parents had “emotionally abused the child in that the parents
[sic] „toxic relations‟ contributed to psychological decompensation of the child. . . . Such
emotional abuse of the child on the part of the parents places the child at substantial risk
of suffering serious emotional damage as evidenced by severe anxiety, depression,
withdrawal and aggressive behavior toward himself and others.” At an initial hearing on
the section 342 petition, the court ordered that David was to remain detained with all
prior orders to remain in effect.
On March 16, 2012, DCFS submitted a jurisdictional report stating that the agency
social worker had attempted to interview David about the allegations in the section 342
petition, but that he “became anxious when questioned about his parents at which time he
became evasive and fairly unresponsive.” The social worker interviewed mother, who
acknowledged that her “strained relationship with father has a detrimental impact on their
2
Section 342 states: “In any case in which a minor has been found to be a person
described by Section 300 and the petitioner alleges new facts or circumstances, other than
those under which the original petition was sustained, sufficient to state that the minor is
a person described in Section 300, the petitioner shall file a subsequent petition. This
section does not apply if the jurisdiction of the juvenile court has been terminated prior to
the new allegations. All procedures and hearings required for an original petition are
applicable to a subsequent petition filed under this section.”
18
son.” Although mother did not believe David had “been witness to any altercations
between [the parents],” she was aware that he could “sense the tension.” Mother also
believed she and father were “equally at fault,” and noted that the parents‟ conjoint
therapy did not “seem to be helping” their “communication problems.”
Father, however, “denied allegations that his relationship with the . . . mother
[was] strained” and believed that Russ had taught them how to “communicate
effectively.” Father stated that he distanced himself from mother to avoid any strain and
had done “exactly” what he was directed to do by all of the therapists and social workers.
Father also stated that the “foster father said that mother made David cry when talking
with him on the phone” and denied that the parents‟ combative relationship had caused
the child‟s depression, anxiety or suicidal ideations.
DCFS also interviewed the foster parents, who reported that “mother appears more
nurturing and considerate than father” and that father “presents as immature in relation to
how he communicates with mother.” The foster parents also denied ever having told
father that mother made the child cry during phone calls.
In its “assessment evaluation,” DCFS concluded that although the parents had
received a “year of family maintenance services,” they “remained unable co-parent
effectively on a regular basis,” which had been a detriment to the child‟s
“emotional/mental health status.” According to DCFS, the parents still “incessantly
blame[d] each other to the extent that they . . . have a difficult [time] communicating as to
their son‟s best interest.” Based on its investigation, DCFS concluded that “[w]hile
mother desires a more harmonious relationship with father, father appears determined to
further his mission to obtain sole custody of the child by berating mother and by
discounting her parenting skills. Mother feels victimized and contends that because
father has money he is able to b[u]y the allegiance of therapists, school staff, etc.”
Mother also “continues to report that there are problems with the father creating lies
about her . . . Father has submitted numerous documentations to [DCFS], the
therapist(s), and he has used derogatory language in reference to mother and seems
19
invested in presenting mother in a bad light.” DCFS recommended continued placement
in the foster home.
Between March 16 and May 3, 2011, the adjudication of the section 342 petition
was continued several times for a variety of reasons, including illness, an intervening
(and subsequently withdrawn) motion from father to remove social worker Karla Hosch
from the case, court congestion and attorney vacations. Father repeatedly objected to the
delays on the basis that the adjudication had not commenced within 60 days of David‟s
detention as required under section 352, but that the court had failed to make a finding of
exceptional circumstances.
C. Adjudication
1. Summary of witness testimony
The adjudication began on May 3rd and continued on numerous court days
throughout May and June. Father called himself and four additional witnesses to testify:
Karla Hosch (the DCFS social worker), Bissada, Russ and Meyer Greene, who worked at
David‟s school.
a. Testimony of Karla Hosch
Hosch testified that, during an interview she conducted on March 7, 2012, David
said the parents do not talk negatively about each other in his presence. David also
denied telling his mother that he wanted to hurt himself. Hosch admitted that she failed
to include this information in any of the DCFS reports that were submitted to the court.
Father‟s counsel asked Hosch to explain whether DCFS had concluded that David
should be removed from the parents‟ custody during the February 21, 2012 TDM. The
court, however, interjected and informed counsel that this line of questioning was not
relevant. The court explained that the court, not DCFS, was the entity that had decided to
detain David, and that the decision was based on information Bissada had provided in a
progress letter issued the day after the TDM was held.
Father‟s attorney then moved for a mistrial and asked the court to recuse itself for
“not letting [him] make a record . . . that there was a determination that there was no risk
20
to this child two weeks after the alleged incident.” The attorney also argued for the first
time that the court should recuse itself because it “ordered a petition to be filed on
February 24th. I think there is an actual conflict here, where you are going from
objective fact finder to prosecutor. And I feel my client is being denied due process.”
The court denied the motion for mistrial and invited the attorney to file a section 170.1
motion.3
When father‟s counsel asked Hosch to describe what conduct father had engaged
in that allegedly caused David‟s emotional distress, she stated that it was “the conflict
between the parents” detailed in Bissada‟s letters. Hosch later added that the
“combination between the mother and father‟s relations” had “contributed to the
consequences of the child‟s being placed in the hospitalization on the 5150.”
When asked whether she could provide any specific dates on which the parents had an
altercation that caused David‟s emotional distress, Hosch stated that the conflict was
“ongoing during the past year.” Hosch acknowledged, however, that, between May of
2011 and January of 2012, the child had experienced moments of “positive progress” and
reported being fairly happy and healthy in the care of the parents. Hosch also stated that,
prior to the hospitalization, David had reported being happy in father‟s home.
Hosch further testified that she was not aware of any evidence demonstrating that
parents had engaged in a physical or verbal altercation in David‟s presence since August
of 2011. She also admitted that: (1) during David‟s hospitalization, she had not spoken to
any doctors or seen any medical records indicating that father caused David‟s emotional
distress; (2) she did not receive any information suggesting that father made comments
about mother‟s depression in the presence of David; and (3) as of the February 21 TDM,
DCFS did not believe that there were any “exigent circumstances” that required David‟s
immediate removal from parental custody.
3
The motion was later filed and denied by the court. Father‟s attorney moved for
mistrial on numerous additional occasions and filed another motion pursuant to section
170.1. All of the motions were denied.
21
b. Summary of Bissada’s testimony
Bissada testified that she believed father had engaged in conflict with the mother
because David had “expressed to [her] that his parents fight and yell at each other all the
time.” Bissada could not, however, provide specific dates on which any of these
altercations may have occurred, explaining that David‟s “reports were general in that his
parents fight and yell.” Bissada did not believe father had ever “emotionally abused”
David, clarifying that, in her view, the term “emotional abuse” would consist of “using
statements toward a child that are damaging to them, emotionally engaging in behavior
that the child is exposed to that are chronically and consistently displayed in the child‟s
presence.” She further clarified that although she did not believe the parents had
emotionally abused the child, she did believe the parents‟ “lack of co-parenting” – which
she defined as the inability to maintain “clear and effective communication . . . in their
treatment of their child” – was a threat to the “emotional best interests” of David and
“affected his emotional well-being in a negative way.”
Bissada testified that children “of [David‟s] age, six-years old, often have trouble
being able to express themselves through words, and so, through play, they will project
their own feelings and thoughts in their play.” Bissada described a picture David drew in
March of 2012, which showed a fish between two homes, and a story he had dictated to
her about the fish, which she had written down: “Fish trying to decide who to live with.
He wants to live with his mom. His mom will not like it if she knows the kid fish loves
the Dad. The Dad will not like it if he knows that the kid fish loves the Mom. They both
don‟t want the kid fish to live at the other house. They don‟t want to share the kid fish.
The judge says he can live with the mom but he is still thinking about how many days a
month with the dad.” Bissada stated that, in her professional opinion, David‟s stories
projected his feelings about his parents and their relationship.
Bissada testified that, contrary to the therapists‟ recommendations, mother had
been engaging in the following detrimental conduct: speaking about father and financial
issues in front of David, permitting the child to sleep in her bed, bringing David to school
22
late and being at the school during teaching hours. Bissada had no information indicating
father engaged in any such conduct.
Father‟s counsel asked Bissada to explain what specific conduct father had
engaged in that caused her to state in a progress letter that the parents were engaged in a
“war.” Bissada explained that her opinions were “[b]ased on what the child expressed to
me about his parents‟ interactions with one another, as well as what he expressed through
his stories and drawings in our sessions.” The only specific instances of actual parental
conflict she could recall occurred in 2010 and May of 2011. Bissada also admitted she
had never seen father yelling in front of David.
Father‟s counsel also asked Bissada to discuss the conversation during which
David said he did not want to be part of this world. Bissada explained that David said he
no longer wanted to be in the world and wanted to live inside the mouth of a dead
octopus. When Bissada asked David how he would not be part of this world, David said:
“„I would kill myself” with “a knife from the kitchen,” adding that he wished he was
never born.
Bissada also explained how the child‟s behavior had changed since she began her
treatment in early 2011. According to Bissada, from March 2011- October 2011, David
would tell stories “of families, parents put in jail, police killing the parents, killing babies,
the little boy trying to get the parents out of jail about the world coming to an end.”
Then, he went through a transition in late 2011 where he actually “played out stories”
using toys: “the bad guys would fight the good guys, and the good guys would become
bad guys, and the bad guys would become good guys again. And he would just continue
this conflict back and forth, back and forth, them sucking their power from each other
and turning good, turning bad.” In the last six weeks – during which time David had
been detained from the parents – he had “wanted to do art” or write books about animals.
In more recent sessions, David had decorated a book named “David the artist” and made
bracelets with his foster siblings‟ names on them.
Bissada also reported that, since his placement in the foster home, David‟s “mood
[wa]s much less agitated” and that he had become more positive about school and his
23
therapy sessions, which he no longer tried to control. He had also stopped asking
questions about who was paying for Bissada‟s time, disparities between his parents‟
income and whether he could talk to the social worker and judge about “where he wants
to live.” In Bissada‟s view, David‟s more recent conduct demonstrated that he was not
“as preoccupied with conflict.”
Bissada also testified that she attended several of the parents‟ conjoint therapy
sessions and “observed [parents] having strained relations with one another.” Bissada
reported that when she would present information that David had shared, the parents
would typically “deny having spoken to him about the topic,” rather than communicating
with each other about the issue. She further reported that “there was a lot of time spent
with the parents speaking about their dissatisfaction with the other parent‟s parenting and
that took the majority of the session.”
Bissada concluded that, overall, two factors contributed to the child‟s “emotional
distress”: “the mother‟s failure to follow [Bissada‟s] recommendations and the parents‟
conflict and inability to resolve that.” More specifically, she believed that “David‟s
perception of his parents‟ relationship, based on his witnessing their interactions with one
another, contributed to his emotional difficulty.” She also believed his emotional health
had improved since being placed in the foster home.
c. Testimony of Ian Russ
Father also called Ian Russ, who testified that mother frequently showed up late to
the conjoint counseling sessions. Russ also described numerous instances in which
mother had engaged in conduct that increased the amount of conflict between the parents,
including: breaking into father‟s house, calling the police to report that father was not
giving David enough food; bringing David to school late; entering the school when
parents were not supposed to be there; and feeding David with a spoon. Mother also
frequently brought up the issue of money, asserting that father should pay her more than
$2,000 a month to support the child and not deduct expenses from those payments or
demand receipts for the items she had purchased. Mother also repeatedly complained
24
that she believed David missed her and was sad when in the care of father. Mother also
stopped scheduling conjoint therapy sessions in December of 2011 because she believed
Russ was biased against her and that Russ participated in a “cycle of [domestic] violence”
being perpetrated against her by father.
Russ reported that he had also worked with father on a variety of provocative
behaviors, such as “reducing . . . the amount of rhetoric . . . in emails” and “not talk[ing]
about the other person‟s parenting, to not make any accusations.” Father also complained
about the number and duration of phone calls that DCFS required David to have with
mother. According to Russ, father brought up the issue of the phone calls repeatedly,
stating that they only agitated the child and “aren‟t doing anything.” Russ also stated that
that “the way [father] would take money away from mother” was “inappropriate and
manipulative” and that “father had issues with being manipulative and controlling.”
Russ also testified that father stated that he had hired an investigator to follow
mother and obtain proof that she was engaged in prostitution. Father also admitted he
had told the head of David‟s school that mother was a prostitute. According to Russ, in
or around December of 2011 or January of 2012, father stated that he had tried to obtain
evidence of her prostitution to show that she had financial resources of her own, and
therefore did not need more than the $2,000 a month he provided to her.
Russ acknowledged there were “times in the relationship between mother and
father when father has exacerbated the conflict.” He also concluded that, prior to coming
to therapy, there were elements of mutual domestic violence in the parents‟ relationship,
but did not believe that it was “ongoing.” Russ believed, however, that father had
become less reactive to mother‟s behavior and had grown increasingly “bewildered” as to
what else he could do to appease her. Russ encouraged father to be even more sensitive
to money issues and the phone calls, and believed father had followed his
recommendations. Russ also believed there was not “very much more [father] could do”
to reduce the conflict with mother. Even after David made his statements about not
wanting to be in this world, Russ was never concerned about leaving him in father‟s care
25
because he was “basically a good dad, basically attentive to David‟s needs . . . and takes
pretty good care of him.”
Russ also related instances in his conjoint sessions during which the parents would
“digress and get into arguments about . . . very small details.” On one occasion, parents
got into a disagreement about the particular date on which David had attended a birthday
party; on another occasion they got into an argument about what chairs they were
supposed to sit in during the therapy session. The parents also briefly resumed their
relationship during the course of Russ‟s treatment, which Russ believed to be a
“continuation of a pattern they had . . . prior to beginning therapy” of “getting close and
then getting angry and separating, and then getting close and getting angry and
separating.”
Russ stated that, in his clinical assessment, “David was aware of [the parent‟s]
anger and conflict, even if they didn‟t do it directly in front of him.”
d. Father’s testimony
During his testimony, father was asked to describe the conduct that had caused the
conflict between himself and mother between November of 2011 and November of 2012.
Father listed several issues related to mother‟s conduct at David‟s school, mother‟s
failure to bring David to therapy or attend conjoint therapy and mother‟s sleeping
arrangement with the child. Father further stated that, despite this conduct, he had
remained “very supportive of [the mother and David‟s] relationship”
Father did not list any behavior that he had personally engaged in that heightened
the conflict. He asserted that, during the relevant time frame, he had never engaged in
“any type of activity in front of David” that “caused him anxiety”; never yelled or raised
his voice in front of David; never discussed financial issues or talked negatively about
mother in David‟s presence; and never seen the child “emotionally distraught.” Father
also believed that he was not deficient in his co-parenting abilities, had complied with all
of Bissada and Russ‟s recommendations and had not “played any role in causing David to
have suicidal ideations.”
26
According to father, Bissada had told him during the TDM that mother was
responsible for generating the conflict within David. He also testified that portions of
DCFS‟s reports were “not accurate.” Specifically, father noted that the DCFS reports did
not include any information about statements in Kaiser‟s medical records purportedly
“showing conflict [that mother] created” during David‟s hospitalization. Although father
had given these records to the DCFS social worker, there was no mention of them in the
jurisdictional report. Father also reported that he had contacted numerous DCFS
employees through letters, emails and phone calls about complaints he had with the way
the social worker was handling the case.
e. Testimony of Meyer Greene
Father also called Mayer Greene, the Judaic Director at David‟s school, who
testified that he had never seen father make any inappropriate comments in front of David
or seen David distressed in his father‟s presence. Greene further testified that father
always brought David to school on time and acted appropriately at the school; mother,
however, frequently brought the child to school late and was the subject of numerous
teacher complaints. Greene also stated that, while discussing what might be causing
mother to bring David to school later, father had told him mother was a prostitute.
2. Closing statements regarding section 342 petition
At closing argument, DCFS and the David‟s attorney requested that the court
sustain the allegations in the petition, noting that Russ, Bissada and the social workers
had all reported that the parents appeared more concerned with their own personal issues
than with David‟s well-being. DCFS and David‟s attorney also emphasized that, despite
this evidence, father had taken no responsibility for David‟s feelings.
Father‟s attorney however, asserted that the petition should be dismissed both for
procedural reasons and on the merits. First, father contended that the “social worker . . .
ha[d] been unobjective” by “misrepresent[ing] and “distort[ing]” facts to the court.
Father‟s attorney also contended that the juvenile court had violated father‟s due process
rights by personally “ordering [DCFS to file] the [section 342] petition.” On the merits,
27
father‟s counsel argued that: (1) Bissada had repeatedly stated she did not believe father
had emotionally abused the child, (2) the evidence showed mother‟s conduct had created
the parental conflict; and (3) DCFS was attempting to assign mother‟s misconduct to
father. Counsel also noted that neither Bissada nor Russ were able to describe a single,
recent instance in which father had played any role in heightening the parents‟ conflict.
3. Juvenile court’s ruling sustaining the petition
At the conclusion of the adjudication hearing, the juvenile court summarized the
primary issue it had to decide: “This case, when boiled down to what‟s actually relevant,
is relatively simple. I have a six year old that was psychiatrically hospitalized with
suicidal ideation. And the question, for me, why that happened.” The court explained
that it had found the testimony of the therapists – especially Bissada‟s testimony – to be
the most relevant evidence. The court explained that Bissada had: (1) related specific and
general statements from David indicating that the “parents fight with each other all the
time”; (2) observed a conjoint session in which “there was a lot of time spent with the
parents speaking about their dissatisfaction with the other‟s parenting”; and (3) made
“very clear” that the parents felt “animosity” toward one another and that “David feels
it.” Russ, on the other hand, had described several instances in which the parents
had engaged in significant disputes over issues that had no relation to the child or his
well-being. According to the court, the parental animosity described by the therapists
was “evident throughout the testimony.”
The court also found it instructive that “no one indicated . . . David just has
pathological mental health issues and that‟s what caused his psychiatric hospitalization.”
The court further noted that Bissada had testified that “after being out of his parents‟ care
and custody for a few months, the child is doing quite well.” “On the other hand, father‟s
telling people that the mother‟s a prostitute, taking money out of her child support, telling
people that the mother‟s going to kill David. They both can‟t even figure out who‟s
going to sit in what chair during a meeting.” Although the court acknowledged there was
extensive evidence that mother‟s conduct had heightened the conflict, it found that, given
28
Bissada‟s statements about the cause of the child‟s emotional distress, “father‟s testimony
on the witness stand . . . that he had done nothing with David to cause him anxiety and
that he has no blame in any of the conflict . . . is really the most telling thing here.”
The court explained that although DCFS “pled emotional abuse,” it was “not
going to be sustaining that” portion of the petition. Nevertheless, the court believed this
was “a clear subdivision (c) case”: “I think that the child is suffering serious emotional
harm, as evidenced by this hospitalization, as a result of the conduct of the parents
together. There is no indication here that either parent has looked at David and said
emotionally abusive things. But at least from the evidence I have, there is also no
indication that they understand that their relationship and what they‟ve exposed this child
to, over and over and over again . . . has created the situation that we‟re now in, where he
would rather die than continue to live with his parents.”
The court modified the subdivision (c) allegation to state the following: “On an
ongoing basis, the child[‟s mother and father] exposed the child to the parents‟ toxic
relations and extreme conflict, which contributed to the psychological decompensation of
the child. The parents lack appropriate communication and blame each other. The
parents expose the child to the parents‟ chronic combative relationship, resulting in the
child experiencing depression, anxiety, suicidal ideation, and the child‟s hospitalization
in a psychiatric facility on February 10, 2012.” The court found the allegation to be true
by a preponderance of the evidence, and set the matter for a disposition hearing on June
25, 2012.
D. Disposition Hearing
1. Summary of witness testimony
Two witnesses testified at the disposition hearing: father‟s personal therapist and
mother.
29
a. Testimony of Natalie Cohen
The father‟s therapist, Natalie Cohen, testified that she had been providing weekly
therapy to father for approximately five years. For the past eight months they had been
focused on improving his parenting skills and reducing the conflict with mother.
Cohen testified that, during the “early stage[s],” father had reported that the
relationship with mother was “very dramatic.” Although it “wasn‟t always clear who was
instigating what,” it was “obvious” to Cohen that the parents‟ behavior had to be
“disruptive to both of them” and “distracting from the care of the child.” Cohen believed
that, more recently, father had made “great efforts to stabilize the type of relationship
they have.” She also noted, however, that the parents had a brief “interlude” in
September or November of 2011 “where it became romantic again,” which had
previously proven to be “very chaotic.”
Cohen reported that father and mother had had recent conflicts over whether father
should be deducting Bissada‟s payments from mother‟s monthly support and “a lot of
conflict about the child‟s sweatshirts.” More specifically, the parents had disagreements
about who had lost the child‟s sweatshirts. Cohen advised father to purchase several
cheap sweatshirts that could be easily replaced without placing blame on either parent.
Cohen and father also conferred about “softer, gentler ways to present one‟s
idea[s].” During the previous week, they had discussed the manner in which father
expressed himself, which frequently sounded “more terse or more curt or . . . critical”
than he intended.” Father did not realize how he sounded and Cohen had spent “quite a
deal of time” on the issue because “[father] was not improving as rapidly as we had
hoped.” Cohen had also discussed with father ways in which his manner of expressing
himself may have impacted his conflict with mother.
According to Cohen, father‟s present therapy focused on “working on a peaceful
and friendly, business-like parenting relationship that has the priority of David‟s best
interests first.” Cohen believed father had been very open and willing to submit to the
therapist‟s advice. Cohen stated he “absolutely” believed that “both” parents had
30
participated in “some pattern or cycles of domestic violence” in the past, which Cohen
had discussed with father.
On cross-examination, Cohen was asked whether she was aware father had stated
that “he believed the responsibility for David‟s internal conflicts that led to suicidal
ideations lay solely with the mother and not at all with him.” In response, Cohen stated:
“I‟m not aware of that being what he said. That‟s not what he said to me.”
Overall, Cohen believed father had improved his behavior greatly, was making
better choices and become more adept at shielding the child from the “ups and downs of
his relationship.” Cohen also believed father had remained more “business-like” with the
mother, with the “focus primarily on David and not so much on themselves.”
Cohen questioned whether David was in fact suicidal and whether the conflict
between the parents had caused his suicidal ideations. Although Cohen acknowledged
she had not treated the child, she thought it “seemed possible” that the comments may
have been caused by a video the child had watched involving a “very violent incident
about an orange and knife.” According to Cohen, “[t]here are a lot of outside factors that
I‟m not hearing discussed in the court . . . like this video.”
b. Testimony of mother
Mother testified that she had “made a lot of mistakes” and that some of her
conduct – including talking about financial issues in front of David and her behavior at
David‟s school – contributed to the child‟s emotional distress. She also acknowledged
that her conduct toward the school was part of a “passive aggressive” behavior she
engaged in as a result of her discomfort with the school. Mother testified that she had not
realized “how much David feels and understands” and now recognized that, “without
intention . . . [she] caused the damage . . . . [and] contributed to [David‟s] suicidal
ideation . . . by not protecting him from hearing things, watching [her] facial expressions,
overhearing things, by not considering dynamics in school.”
Mother also testified that, throughout their relationship, father had tried to control
her by threatening to take David away and threatening to throw her out of the house if she
31
did not behave in a certain way. She also alleged father had engaged in “financial
control, manipulation, mind games . . . physical violence, as pulling my hair and kicking,
pushing.” Mother said she had since “terminated” the domestic violence in the
relationship, and stated that no physical acts had occurred in the last 10 to 12 months.
Mother stated that she had been working hard to be “a better person” and a “better
parent,” and not to react when she was called a prostitute or other negative names
because she knew it was not true.
2. Closing argument
At the closing argument, David‟s attorney requested that the child remain with the
foster parents, with the possibility of unmonitored visitation. The attorney asserted that
Cohen‟s testimony demonstrated that father had been addressing the same issues for
years and was still unable to acknowledge any role in causing David‟s distress.
Father‟s counsel, however, argued that David should be returned to father‟s
custody, contending that there were “no statements from any of the therapists involved
that [father] was being derogatory or playing out any of the conflict by acting in a way
that was undermining or negative toward the mother in front of David.” Father‟s counsel
also argued that he had completed all of the services the court had ordered and
voluntarily followed all of the therapist‟s recommendations.
3. Trial court’s disposition order
Prior to issuing its ruling on disposition, the court noted that it had been presiding
over the matter for 18 months. Initially, the court believed it “could at least get the
parents to work together and to agree on a custody arrangement” and that “it would be the
best thing for David to be in the custody of his parents.” The court acknowledged,
however, that its initial assessment had “[c]learly [been] wrong.”
The court concluded that DCFS‟s reports showed that while things had “vacillated
between a little better and a little worse [for David]” during the first year of court
supervision, his hospitalization showed that things had deteriorated. The court found it
particularly troubling that David not only expressed suicidal thoughts, but had a specific
32
plan on how he would carry out his suicide. The court noted that “David‟s not wanting to
live with the world” was not because his parents did not love him or because he was
“specifically being abused by either one, but simply that their relationship was so bad and
so detrimental to him that he didn‟t want to live here with that kind of thing going on
around him.”
As in its jurisdictional ruling, the court emphasized that the most important
evidence was Bissada‟s statements about “her interactions with David” and Russ‟s
statements about his “interactions with the parents,” which indicated that “both mother
and father exacerbated the conflict at different points in time.” The court also noted that
the father‟s behavior during trial indicated that he had still not addressed some of his
underlying behavior. The court described an instance during the adjudication
proceedings when it heard father tell Bissada that mother would have to pay for the
therapist‟s time if she wanted to conduct a cross-examination. Bissada later told the court
that father said he would not pay her after she completed her testimony. The court felt
this conduct demonstrated that “financial issues are still at the forefront.” The court also
noted that father‟s counsel had objected repeatedly while Bissada was attempting to
testify as to how David was feeling, suggesting that father was still not interested in
hearing how his conduct was impacting his child.
The court also noted that it appeared “there was more interest in winning than
listening or trying to figure out what to do for David. There was a lot of deflecting
blame.” In the court‟s view, the evidence also showed that minor issues between the
parents continued to escalate into serious disputes, which was not in David‟s interests.
“While there‟s indication, at least through argument, that none of this happened in front
of David, I think it is truly naïve of either parent to not realize that all of this happens in
front of David, that he is affected by it.” The court also emphasized that father still
refused to take any blame in the matter: “The only person I didn‟t see taking any blame
in this matter for what‟s going on with David or what he feels was the father, based on
his own testimony.”
33
In summarizing his ruling, the court explained: “[T]he focus for me was not on
father‟s individual relationship with David and not on mother‟s individual relationship
with David, but on the relationship between the parents that so clearly adversely affected
David. [¶] . . . [¶] This is really about a child who, when he was with his parents and in
their care and custody, was blowing everything up. Everything was at war, hurting each
other. . . . And since he‟s been out of the parents‟ custody, he‟s wanting to make
friendship bracelets. . . . That says a lot about this case [¶] . . . [¶] What I know from
David being in this foster home twice now is this. When David is out of the care of his
parents, in a neutral setting, with monitored visits, he does much better. He did much
better the first time around. He‟s doing much better this time around. And the court is
leaving that situation in effect.”
The court found, by clear and convincing evidence, that returning David to the
parents‟ custody would be a substantial risk to his well-being and that there were no
reasonable means to protect him without removing him from the parents.
Father appealed the jurisdictional and dispositional orders.
DISCUSSION
Father raises three arguments on appeal: (1) the juvenile court‟s jurisdictional and
disposition orders were not supported by substantial evidence; (2) the juvenile court acted
in excess of its statutory authority and violated the separation of powers doctrine by
ordering DCFS to file a section 342 petition; and (3) the juvenile trial court granted
several continuances that resulted in a violation of the time limitations set forth in section
352, subdivision (b).
A. The Trial Court’s Jurisdictional and Disposition Orders Were Supported By
Substantial Evidence
1. Standard of review
“„In reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence, contradicted
34
or uncontradicted, supports them. “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.
[Citations.] „“[T]he [appellate] court must review the whole record in the light
most favorable to the judgment below to determine whether it discloses substantial
evidence . . . such that a reasonable trier of fact could find [that the order is
appropriate].”‟ [Citation.]” [Citation.]‟” (In re I.J. (2013) 56 Cal.4th 766, 773.) If the
appellant‟s challenge to the juvenile court‟s jurisdictional finding or disposition is
predicated on an issue of law, we review the issue de novo. (In re David H. (2008) 165
Cal.App.4th 1626, 1633.)
2. The trial court did not err in ruling that David was a person described in
section 300, subdivision (c)
Although the juvenile court struck language in the section 342 petition alleging
that the parents had emotionally abused David, it ruled that jurisdiction was nonetheless
proper under section, 300, subdivision (c) based on its finding that the parents had
exposed the child to their “toxic” and “chronic combative relationship,” which “result[ed]
in the child experiencing Depression, Anxiety, suicidal ideation and the child‟s
hospitalization in a psychiatric facility.” Father raises two points of error regarding this
jurisdictional finding. First, he asserts that, as a matter of law, a child cannot be declared
a dependent under subdivision (c) unless there is evidence that the parent has committed
physical, sexual or emotional abuse against the child. Alternatively, he alleges that the
record contains insufficient evidence to support the juvenile court‟s finding that he
personally engaged in any conduct that caused David‟s emotional distress.
35
a. Section 300, subdivision (c) does not require a finding of parental
emotional abuse
Father contends that the conduct alleged against the parents in the amended
section 342 petition – exposing David to their combative relationship and being unable to
co-parent their child – is not sufficient to sustain a finding of jurisdiction under
subdivision (c). According to father, subdivision (c) applies only if the evidence shows
that the parent perpetrated physical, sexual or emotional abuse against the child. He
further contends that because the juvenile court struck language from the original section
342 petition alleging that the parents‟ emotionally abused David, there was no basis for
sustaining jurisdiction under section 300, subdivision (c).
Father‟s assertion that subdivision (c) requires a showing that the parent actually
abused the child conflicts with the language of the statute. Subdivision (c) states, in
relevant part, that a child may be found to be a dependent of the court if “[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. . .” The subdivision does not include any language that limits its application to
instances in which the parent has actually abused the child; rather, it states that
jurisdiction is proper if a parent has engaged in “conduct” that has caused the child to
suffer various enumerated forms of emotional damage or places the child at substantial
risk of those forms of emotional damage. The plain language of the statute therefore
indicates that subdivision (c) may extend to the sort of improper parental treatment or
conduct evidenced here that causes or places the child at substantial risk of emotional
damage.
Father, however, argues that in In re Alexander K. (1993) 14 Cal.App.4th 549(Alexander), the court held that, as used in subdivision (c), the term “conduct” is intended
to mean physical, sexual or emotional abuse. The appellant in Alexander argued that
subdivision (c) was “so vague as to violate a parent‟s due process rights because it fails to
give fair notice of what conduct to avoid.” (Id. at p. 558.) The court rejected the
36
argument, explaining that although the wording of subdivision was “vague as to the
parental conduct that would be at fault,” subdivision (j) of section 300 contained
additional language stating: “„It is the intent of the Legislature in enacting this section to
provide maximum protection for children who are currently being physically, sexually, or
emotionally abused, being neglected, or being exploited, and to protect children who
are at risk of that harm . . .‟ (Welf. & Inst. Code, § 300, subd. (j), italics added.)”
(Id. at p. 559.) The court concluded that, based on this additional language, it was
“clear . . . that the parental conduct branch of subdivision (c) seeks to protect against
abusive behavior that results in severe emotional damage. We are not talking about run-
of-the- mill flaws in our parenting styles – we are talking about abusive, neglectful and/or
exploitive conduct toward a child which causes any of the serious symptoms identified in
the statute. . . . Viewed in light of the entire statute, subdivision (c) is not overly vague.
Persons of common intelligence would not have to guess whether someone was
maltreating their child to the point of causing severe emotional harm.” (Alexander,
supra, 14 Cal.App.4th at p. 560.)
We do not agree with father‟s assertion that Alexander limits subdivision (c) to
cases in which the evidence shows a parent has engaged in “abuse.” Although the court
stated that subdivision (c) was intended to “protect against abusive behavior that results
in severe emotional damage” (Alexander, supra, 14 Cal.App.4th at p. 560), other parts of
the opinion made clear that the court believed the subdivision extended to “abusive,
neglectful and/or exploitive conduct,” or instances in which the parent was “maltreating
their child to the point of causing severe emotional harm.” (Alexander, supra, 14
Cal.App.4th at pp. 559-560.)
The conduct alleged in the section 342 petition sustained against the parents
consisted of exposing the child to a “toxic,” “chronic combative relationship” and
“extreme conflict.” As discussed in more detail below, substantial evidence at the
adjudication showed that the parents placed David at the center of a severe, ongoing
conflict that had not abated despite a full year of court supervision and maintenance
services. Indeed, the evidence suggests that the parents‟ conflict and resulting inability to
37
co-parent continued to increase during the supervisory period, ultimately culminating in
the child‟s psychiatric hospitalization. Such conduct constitutes a form of neglect,
exploitation or maltreatment, and cannot be construed as a mere “run-of-the- mill flaw[]
in . . . parenting style[].” (Alexander, supra, 14 Cal.App.4th at p. 560.)
b. Substantial evidence demonstrates that father’s conduct contributed to
David’s emotional damage
Father does not dispute that the evidence at trial showed David exhibited the forms
of severe emotional damage enumerated in subdivision (c) – namely “severe anxiety,
depression, withdrawal, or untoward aggressive behavior toward self or others.” (§ 300,
subd. (c).) Father contends, however that there is insufficient evidence to show that he
personally engaged in any conduct that caused the child‟s emotional damage. We
disagree.
First, there is substantial evidence in the record demonstrating that David‟s
emotional damage was caused by the parents‟ severe, ongoing conflict and their
continuing inability to co-parent their child. After David was hospitalized for suicidal
ideation in February of 2012, David‟s therapist, Angela Bissada, issued a progress letter
plainly letter stating: “I have no doubt that [David‟s] statement, „I do not want to live in
this world‟, and resultant suicidal ideation is in reaction to the continued war between his
parents. . . . [H]e will continue to suffer emotional harm as long as . . . his parents are
unable to co-parent effectively and to shield him from their conflict.” Bissada also stated
that it was “clear that [parents‟] ongoing, severe deficiency in the ability to appropriately
co-parent David has contributed greatly to [David‟s] emotional distress culminating in a
psychiatric hospitalization.”
Russ‟s progress letter, dated February 22, 2012, similarly indicated that the
parents‟ conflict “continue[d] to grow.” During an interview in March of 2012, mother
told DCFS that the parents‟ conjoint therapy did not “seem to be helping” their
“communication problems,” and that David could “sense the tension.” Finally, in its
jurisdictional report, DCFS concluded that although the parents had “one year of family
38
maintenance services,” they “remained unable co-parent effectively on a regular basis,”
which had been a detriment to the child‟s “emotional/mental health status.”
At the adjudication, Bissada provided extensive testimony confirming her belief
that David‟s condition was a result of his parents‟ ongoing conflict. According to
Bissada, David had “expressed to [her] that his parents fight and yell at each other all the
time.” Bissada explained that such conduct threatened David‟s “emotional best interests”
and “affected his emotional well-being in a negative way.” Bissada also explained that
the effects of the parents‟ conflict on David were particularly evident in his pictures and
stories. When David was in the parents‟ custody, he presented stories about a child being
torn between his parents, a little boy trying to get the parents out of jail and about the
world coming to an end. He also related the story of a fish, who was worried that each
parent would be angry if they knew he loved the other parent. Bissada testified that these
stories showed “David‟s perception of his parents‟ relationship, based on his witnessing
their interactions with one another, contributed to his emotional difficulty.”
As the trial court additionally observed, no party presented any evidence that
David‟s emotional distress was caused by “pathological mental health issues.”
Moreover, when David was removed from his parents‟ custody and placed in a foster
home, his condition improved. After several spending several weeks in the foster home,
David appeared much less preoccupied with conflict. Rather than telling stories about a
child who was torn between his parents, David chose to engage in art projects. He also
appeared more positive, less agitated and less preoccupied with conflict. Bissada‟s
opinions about the cause of David‟s suicidal ideation, the lack of any evidence that his
emotional damage was the result of any underlying pathological condition and his
apparent improvement while placed in the foster home constitute substantial evidence
that the parents‟ conflict contributed to his condition.
The record also contains substantial evidence that mother and father both engaged
in conduct that contributed to their conflict and their inability to co-parent. Russ testified
that, during the conjoint therapy sessions, the parents frequently digressed into arguments
about “very small details,” including, for example, the date on which David had attended
39
a birthday party and the proper seat each parent was supposed to sit in during the therapy
session. Bissada expressed similar views, explaining that the parents spent a majority of
the conjoint therapy sessions she had observed expressing “dissatisfaction with the other
parent‟s parenting,” rather than “focusing on David‟s well being.” DCFS reported that,
during the February 21, 2012 TDM – which was held immediately after David‟s release
from the hospital – the parents were still “unable to focus on [David‟s] well-being given
their determined efforts to berate and blame one another for past issues” and “were
unable to refrain from belittling one another to the extent that they ignored all attempts to
direct their attention to their sons needs.” DCFS further reported that it “continued to
receive a daily barrage of e-mails” from both parents “wherein they continue to
be invested in petty conflicts,” noting that “the parents‟ longstanding and extreme
conflict . . . [had] not been alleviated by various therapeutic modalities. . .”
In his testimony, Russ specifically acknowledged that there were “times in the
relationship . . . when father has exacerbated the conflict.” Russ explained that, in
December of 2011 or January of 2012 – which was shortly before David was hospitalized
– the father admitted he had threatened mother by telling her that he was going to obtain
pictures of her engaging in prostitution to prove that she had her own financial reasons.
The Rabbi at David‟s school admitted that father had told him that mother might be
bringing David to school late in the mornings because she was employed as a prostitute.
Russ also reported that he had worked with father to address a variety of behavior that
exacerbated the conflict, including “the amount of rhetoric . . . in emails”; “talk[ing]
about the other person‟s parenting”; “mak[ing] accusations”; and making deductions
from mother‟s monthly child support payments, which Russ described as “inappropriate
and manipulative.” Overall, Russ reported that father “had issues with being
manipulative and controlling.”
In its jurisdictional report, DCFS made similar observations, explaining that father
had “used derogatory language in reference to mother and seems invested in presenting
mother in a bad light.” Finally, David‟s foster parents reported that father “presents as
immature in relation to how he communicates with mother.”
40
In sum, the record contains substantial evidence that: (1) David‟s emotional
distress was caused by his exposure to the parents‟ ongoing, combative relationship and
their chronic inability to co-parent effectively; and (2) father engaged in conduct that
heightened these conflicts. This evidence was sufficient to sustain a finding that David
fell within the jurisdiction of the juvenile court pursuant to section 300, subdivision (c).4
3. Substantial evidence supports the trial court’s disposition order
Father argues that there is insufficient evidence to support the juvenile court‟s
finding that returning David to his custody would place the child at a substantial risk of
harm. To remove a child from parental custody, the juvenile court must find clear and
convincing evidence that there is or would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the child if he or she were
returned home, and there are no reasonable means by which the child‟s physical health
can be protected without removal. (§ 361, subd. (c)(1).) “„A removal order is proper if
based on proof of a parental inability to provide proper care for the child and proof of a
potential detriment to the child if he or she remains with the parent. [Citation.] “The
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.”
4
Father also contends that we must reverse the juvenile court‟s jurisdictional
finding because it was partially predicated on improper evidence, including off-the-
record statements that Bissada made at the adjudication hearing and objections that
father‟s counsel made during Bissada‟s testimony. In support, father cites comments the
court made when entering its disposition ruling. Specifically, the court referred to a
statement Bissada made after completing her testimony in which she alleged father had
told her he would not pay her hourly fee for the portion of her testimony elicited during
mother‟s cross-examination. The court also referred to the fact that father‟s attorney had
objected repeatedly while Bissada was testifying about David‟s thoughts and feelings.
We need not consider this argument because the court did not make these statements
when ruling on jurisdiction; it made the statements during its dispositional ruling. There
is no suggestion in the record that the court‟s jurisdictional ruling was in any way based
on Bissada‟s statements regarding father‟s refusal to pay for her cross-examination
testimony time or father‟s repeated objections to Bissada‟s testimony regarding David‟s
emotions.
41
[Citation.] The court may consider a parent‟s past conduct as well as present
circumstances.‟ [Citation.]” (In re A.S. (2011) 202 Cal.App.4th 237, 247.)
As explained above, there is substantial evidence that the parents‟ conflict resulted
in emotional harm to David. There is also substantial evidence that both mother and
father were responsible for engaging in behavior that caused the conflict. The DCFS
reports and the witnesses‟ testimony demonstrate that, even after David exhibited suicidal
ideations, the parents were unable to focus on the best interests of the child because they
were consumed with their own conflict.
There is also substantial evidence that leaving David in the care of father would
present a substantial risk to David‟s emotional well-being. Unlike mother, who at least
acknowledged that her behavior had contributed to David‟s emotional distress, father
flatly denied that he had engaged in any conduct that contributed to his child‟s suicidal
ideation and blamed the parental conflict entirely on mother‟s behavior. Although DCFS
observed the parents “berate” and “belittl[e]” one another throughout a meeting in
February of 2012, DCFS reported in March that father denied “his relationship with the
child‟s mother [was] strained.”
The record indicates that father has engaged in a similar pattern of denial since the
initiation of these dependency proceedings. When father was first questioned about the
incident involving mother‟s truck, which was the subject of the original section 300
petition sustained in February of 2011, he denied any wrongdoing. Father alleged that he
had not swerved the vehicle, had not driven fast, and had stopped as soon as he realized
that M.B. was in the open bed of the truck. He also alleged that David was wearing his
seat belt. These statements were directly contradicted by M.B. and V.F., who stated that
father drove the vehicle in an erratic manner while M.B. was screaming and slamming on
the rear window and that David was not wearing a seat belt. In addition, a neighbor
reported that she heard the wheels of the truck screeching during the incident. Father,
however, discounted the witness‟s statements.
The DCFS reports also indicate that father has consistently denied that the parents
have ever engaged in any form of domestic violence. Mother, Russ and father‟s own
42
therapist, Natalie Cohen, however, all stated that both parents had participated in
domestic violence at various times in the relationship.
Father‟s current denial that his conduct played any role in David‟s suicidal
ideation, especially when considered in conjunction with father‟s past denials of other
inappropriate conduct, suggest that he either does not appreciate the effect his behavior
has on his child or is incapable of taking the steps necessary to curtail that behavior.
There is also substantial evidence that, even after David exhibited suicidal
ideation, the parents‟ were still unable to set aside their conflict and focus on their child‟s
best interests. DCFS reported that it was forced to “prematurely conclude[]” a TDM on
February 21, 2012 because the parents were extremely hostile toward one another and
“still unable to focus their energy on their child‟s needs.” DCFS further reported
that, after David‟s hospitalization, its social workers continued to receive daily emails
demonstrating that the parents “continue to be invested in petty conflicts.” This
conduct – which occurred after David‟s hospitalization – supports the court‟s finding
that, if left in the parents‟ custody, David would be placed at substantial risk of being
exposed to the very conflict that had previously caused him emotional damage.
Finally, as summarized above in relation to the jurisdictional order, there is
substantial evidence that David‟s emotional condition improved greatly when he was
taken out of the care of the parents. This factor, considered in conjunction with evidence
that father continues to minimize his role in causing David‟s emotional distress and that
the parents have been unable to set aside their conflict despite a full year of court
supervision and David‟s hospitalization, are sufficient to support the trial court‟s finding
that the child would be at substantial risk of harm if left in either of the parents‟ care.
Father also contends that there were various reasonable alternatives to “out-of-
home placement” that the court should have “considered and/or ordered.” Each of
father‟s proposed alternatives involve either leaving David in the care of the parents
under increased supervision, or providing father sole custody of the child. Father
overlooks the fact that, after the initial section 300 petition was sustained against the
parents in February of 2011, the court permitted the parents to retain custody of David.
43
The parents, however, continued to expose David to their conflict, which eventually led
to the filing of the section 342 petition. Given the parents‟ inability to properly care for
their child during the year of court supervision, leaving David in their custody was not a
reasonable alternative. Providing the father sole custody of David was also not a
reasonable alternative given father‟s inability to acknowledge or understand that his
conduct contributed to the child‟s emotional distress.
B. The trial court did not act in excess of its statutory authority or violate the
separation of powers doctrine
Father contends that the juvenile court improperly usurped DCFS‟s authority to
initiate a dependency petition when it ordered the agency to file a section 342 petition at
the February 24th hearing. Father argues that the court‟s order exceeded its statutory
authority and violated the separation of powers doctrine. The transcript indicates that all
parties understood that DCFS would file a petition in light of the new facts. Even if the
court had erred, father has not demonstrated any prejudice and has forfeited any claim of
error.
1. Factual summary
The court first learned of David‟s suicidal ideation pursuant to father‟s section 388
petition, which was filed as an emergency walk-on request the day David was released
from the hospital. At the hearing on February 16th, David‟s attorney informed the court
that the parties had scheduled a TDM and therapy sessions with Russ and Bissada to
discuss David‟s statements. The court concluded that it did not have sufficient
information to address the emergency motion, set father‟s section 388 petition for a full
hearing on March 16 and ordered the parties to return on February 24th for a “progress
report on how David‟s doing and the results of the therapy sessions . . . as well as the
[TDM].”
Shortly before the February 24th hearing, DCFS provided a report summarizing
what had transpired at the TDM and a last minute information containing progress letters
from both therapists. In her letter, Bissada stated that she had “no doubt” that David‟s
44
suicidal ideation was “in reaction to the continued war between his parents” and that it
was “clear” the parents‟ “ongoing, severe deficiency in the ability to appropriately co-
parent David” had “contributed greatly to [the child‟s] emotional distress culminating in a
psychiatric hospitalization.”
At the hearing, the court informed the parties that its tentative ruling was to detain
David. County Counsel and David‟s attorney agreed with this course of action. The
mother and father questioned Bissada‟s factual findings, but agreed to go along with
whatever the court believed was best for their child.
The court ordered the child to be removed from parents, explaining “[w]hat has
happened to this little boy, based on his parents‟, as his therapist put it, ability to
appropriately co-parent him, has resulted in him being psychiatrically hospitalized.”
Father‟s counsel immediately requested that the matter be set for trial “without waiving
time.” The court then set the matter for a “no-time waiver adjudication date” on March
16th, which was the same date that had been scheduled for the section 388 petition. The
court ordered the social worker to provide a report by March 14th and stated “[t]he
Department is to file a petition within 72 hours.” No party objected to this order. Several
days later, DCFS filed its section 342 petition asserting that David was a person
described under section 300, subdivision (c).
On February 29, March 16, April 16, April 30, and May 2, the court held
preliminary hearings regarding the pending adjudication; no party raised any issue
regarding the court‟s prior instruction that DCFS was to file the section 342 petition
within 72 hours. During the adjudication, the father‟s counsel argued for the first time
that the court should recuse itself based on the fact that it had ordered DCFS to file the
section 342 petition, stating: “I am asking you to recuse yourself under 170.1 because
you ordered a petition to be filed on February 24th. I think there is an actual conflict
here, where you are going from objective fact finder to prosecutor and I feel my client is
being denied due process.” Father later filed a section 170.1 motion and repeatedly
moved for a mistrial based on this same alleged violation of due process. At closing
45
argument of the adjudication, DCFS and David‟s attorney recommended that the court
sustain the petition.
After the adjudication and disposition orders were entered, father filed an
application for rehearing alleging that the juvenile court had violated his due process
rights by deciding the merits of a petition that it had ordered DCFS to file. According to
father, the court‟s conduct demonstrated that it was “predisposed to sustain the petition.”
2. Father has failed to demonstrate that the juvenile court acted in excess
of its authority or that he was prejudiced by any theoretical error
The factual summary above demonstrates that several actions occurred before the
court directed DCFS to file its section 342 petition within 72 hours. First, the court
received a letter from Bissada indicating that the parents‟ conduct had greatly contributed
to David‟s suicidal ideation and subsequent hospitalization; second, the court told the
parties it intended to detain the child; third, County Counsel informed the court it agreed
with this request in light of the evidence in the DCFS report and last minute information;
fourth, the court ordered the child detained; fifth, father‟s counsel immediate requested
that the court set a date for the adjudication; and sixth, the court scheduled the
adjudication for March 16. After all of these events occurred, the court then directed
DCFS to file its petition within 72 hours.
The course of events at the February 24th hearing demonstrate that all parties –
including father – implicitly understood that DCFS intended to file a section 342 petition
in light of the changed circumstances of the case. Section 342 states, in relevant part: “In
any case in which a minor has been found to be a person described by Section 300 and
the petitioner alleges new facts or circumstances, other than those under which the
original petition was sustained, sufficient to state that the minor is a person described in
Section 300, the petitioner shall file a subsequent petition.” At the hearing, DCFS‟s
counsel expressed its belief that detention was warranted based on the new information in
Bissada‟s progress letter. Father, in turn, immediately requested an adjudication date,
which the court set. Father‟s request for an adjudication, which DCFS did not oppose,
46
implicitly shows that both the father and the agency understood that a petition would be
filed. After the adjudication was set, the court directed DCFS to file the petition within
72 hours and no party objected to or commented. Again, this silence suggests that all of
the parties assumed that the agency intended to file a petition and that the court‟s order
was merely meant to clarify that date by which it must be filed.
Even if we were to construe the court‟s instruction as an order to initiate a section
342 petition rather than order to file the petition within a certain time frame, father‟s
claim would fail regardless of its legal merits. First, father has failed to demonstrate that
he suffered any prejudice by the court‟s theoretical violation of the separation of powers
doctrine. (See People v. England (2000) 83 Cal.App.4th 772, 780 & fn. 5 [rejecting
“theoretical claim of a violation of separation of powers” where defendant failed to
“demonstrate how he was prejudiced by any such violation”].) DCFS‟s conduct
throughout the dependency proceedings show that it intended to file a section 342
petition regardless of whether it was ordered to do so. DCFS agreed that the court should
detain David based on the changed circumstances of the case, it did not object or
comment on the court‟s direction that it file a petition within 72 hours, it voluntarily
prosecuted the petition at the adjudication and argued that the court should sustain the
petition. All of this conduct shows that DCFS was in favor of pursuing and sustaining
the section 342 petition regardless of the court‟s direction that it file the petition within
72 hours.
Second, the record demonstrates that father has forfeited any claim of error related
to the court‟s purported violation of the separation of powers doctrine or statutory
authority because he never raised these objections in the juvenile court. “A party forfeits
the right to claim error as grounds for reversal on appeal when he or she fails to raise the
objection in the trial court. [Citations.] (In re Dakota H. (2005) 132 Cal.App.4th 212,
221-222.) “Dependency matters are not exempt from this rule.” (In re S.B. (2004) 32
Cal.4th 1287, 1293, fn. omitted.) Forfeiture applies to claims of statutory error and to
claims of violations of fundamental constitutional rights. (In re Seaton (2004) 34 Cal.4th
193, 198.) The purpose of the rule is to encourage parties to bring errors to the attention
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of the trial court, so that the trial court has an opportunity to correct them. (S.B., supra,
32 Cal.4th at p. 1293.)
During the February 24th hearing, father did not object to the juvenile court‟s
direction that DCFS file a new petition within 72 hours. Father also did not object to this
instruction at any of the several hearings that preceded the adjudication. During the
adjudication, father only referred to the court‟s direction that DCFS file the petition in the
context of his objection that as a matter of due process, the court should recuse itself from
deciding the merits of a petition that it had initiated through its own orders. Thus father
did not assert – as he does now– that the court lacked authority to order DCFS to initiate
the petition; he asserted only that the court should transfer the petition to another
department to avoid any inherent bias. Had the father raised the separation of powers
issue at the time the court directed DCFS to file the petition within 72 hours (or at any
other time in the proceedings), the court and DCFS would have had an opportunity to
consider the argument and, if necessary, take any actions necessary to resolve the
purported error.
C. Father was not prejudiced by the juvenile court’s failure to abide by time
limitations set forth in the Welfare and Institutions Code
Father contends that the juvenile court violated section 352 by granting numerous
continuances that caused the disposition hearing to be completed more than 60 days after
David was detained from parents without a finding of exceptional circumstances. When
a child has been temporarily detained pursuant to a pending petition, section 334 requires
that “the petition must be set for hearing within 15 judicial days from the date of the
order of the court directing such detention.” Section 352, subdivision (a), however,
permits the juvenile court to “continue any hearing . . . beyond the time limit within
which the hearing is otherwise required to be held, provided that no continuance shall be
granted that is contrary to the interest of the minor.” The court‟s authority to continue a
hearing is subject to limitations set forth in section 352, subdivision (b), which states in
relevant part: “Notwithstanding any other provision of law, if a minor has been removed
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from the parents‟ or guardians‟ custody, no continuance shall be granted that would result
in the dispositional hearing . . . being completed longer than 60 days after the hearing at
which the minor was ordered removed or detained, unless the court finds that there are
exceptional circumstances requiring such a continuance. The facts supporting such a
continuance shall be entered upon the minutes of the court. . . .”
The parties do not dispute that: (1) the court ordered David temporarily detained
on February 24th and scheduled the adjudication to commence on March 16; (2) over
father‟s repeated objections, the court granted several continuances that delayed the start
of the adjudication until May 3, which was more than 60 days after the date on which
David was removed from his parents; (3) the court granted, again over father‟s
objections, several additional continuances during the adjudication and disposition
hearings, which did not conclude until June 25;5 (4) the primary reason given for the
delays was court congestion and attorney vacation schedules; and (5) the court never
made a formal finding of exceptional circumstances justifying the continuances.
These uncontested fact demonstrate that the juvenile court violated the time
limitations set forth in section 352. Before permitting any continuance that would result
in the dispositional hearing being completed longer than 60 days after detention, the court
was obligated to make a finding that exceptional circumstances justified the continuance,
and set forth the facts supporting that finding. The court failed to do either. Instead, the
court referred to “court congestion” and attorney vacations. Neither such justification
qualifies as an “exceptional circumstance” within the meaning of section 352, subdivision
(b). (See Jeff M. v. SCLA (1997) 56 Cal.App.4th 1238, 1243, fn. 4 (Jeff M.) [“court
congestion” does not constitute “exceptional circumstance”]; Renee v. SCLA (1999) 76
5
On May 11, 2012, father filed a petition for writ of mandate seeking an order
requiring the juvenile court to either transfer the case to another department “capable of
commencing the trial immediately,” or direct the court to “conduct the trial, every court
day . . .until the matter is fully adjudicated.” On June 22, 2012, we issued a order
dismissing the petition on mootness grounds based on a minute order indicating that
juvenile court had completed the jurisdictional hearing on June 18, 2012.
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Cal.App.4th 187, 197 [court‟s “vacation plans” do not constitute exceptional
circumstances].)
The rights of a child, and his parents, to an adjudication within the statutory
deadlines are not to be made secondary to either of these factors.
Although “[w]e are mindful that juvenile court judges, while diligent and caring,
are overworked and doing their best to juggle ever-increasing caseloads while suffering
grossly inadequate resources” (Jeff. M, supra, 56 Cal.App.4th at p. 1243), that does not
relieve them of their obligations under section 352, subdivision (b). “In dependency
matters such as this one, where the minors are living apart from their parents, it is
particularly important that the validity of allegations justifying a temporary separation be
adjudicated as quickly as possible. If they are not, and eventually the allegations are
determined to lack merit, the relationship between the parents and the minors may be
damaged severely. If that happens, the prospects for eventual reunification of the family
are bleak.” (Renee, supra, 76 Cal.App.4th at p. 197.) Given the precedence our
Legislature has assigned to cases in which minors have been detained from their parents
(see § 345), it is incumbent upon the superior courts to assign their resources in a manner
that ensures compliance with section 352‟s time limitations.
However, we do not agree with father‟s contention that the failure to comply with
section 352 requires us to “over turn the trial court[‟s]” jurisdictional and disposition
orders. In the absence of some showing that the unauthorized delay actually impacted the
outcome of the hearing, “a violation of the time limits of section 352, subdivision (b) . . .
[does not require] . . . revers[al of] . . . the dispositional order.” (In re Angelique (2003)
113 Cal.App.4th 509, 523 [explaining that “[s]ection 352 does not supply a penalty for
noncompliance”]; see also In re Richard H. (1991) 234 Cal.App.3d 1351, 1362 [there is
no “requirement that the [section 300] petition be dismissed if the [section 352,
subdivision (b)] time limits are not met”].) In this case, father has not explained how the
unauthorized delay impacted the outcome of the jurisdictional or disposition hearing, and
the record contains substantial evidence supporting the court‟s rulings on those matters.
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DISPOSITION
The juvenile court‟s orders are affirmed.
ZELON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
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