In re Cheyenne C. CA2/4 ( 2014 )

Filed 9/19/14 In re Cheyenne C. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re CHEYENNE C., a Person Coming B252940
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK97074)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
D.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Annabelle
Cortez, Judge. Affirmed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, and Stephen D. Watson, Deputy County Counsel,
for Plaintiff and Respondent.
INTRODUCTION
D.C. (Father) appeals jurisdictional and dispositional orders of the juvenile court
maintaining jurisdiction over his daughter, Cheyenne C. (born in May 2000), and
removing her from his custody. Because we conclude that substantial evidence supports
the juvenile court’s findings that Cheyenne should remain in her mother’s custody and
that continuing dependency jurisdiction was required to safeguard Cheyenne’s well-
being, we affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
I. Initiation of Dependency Proceedings
Cheyenne is the child of Father and Miriam S. (Mother). On October 19, 2012,
the Los Angeles County Department of Children and Family Services (DCFS)
investigated a referral alleging that Mother emotionally abused 12-year-old Cheyenne
and 16-year-old Sydney, and that there was ongoing conflict and physical abuse between
Mother and Father, who had been separated for six years and divorced for two years. The
parents had joint legal and physical custody of the girls, but both girls lived with Mother.
When interviewed, Cheyenne, Sydney, and Mother all reported that Father was verbally
abusive, calling them fat and worthless. Both children denied any emotional abuse by
Mother.
Cheyenne had suffered anxiety attacks since the age of four and had been
hospitalized in psychiatric facilities several times. She received outpatient psychiatric
treatment and took prescribed antidepressant medication. Shortly before the referral, on
October 11, 2012, Cheyenne had been admitted to Aurora Charter Oak Behavioral Health
Center, suffering from major depressive disorder and suicidal thoughts. While there, she
was fixated on the fear that Father would try to take her from the hospital. She remained
hospitalized for six days.
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Cheyenne reported that she loved Father and wanted to see him, but that he was
verbally aggressive and needed psychiatric care. She said his behavior caused her
anxiety and he smoked too much marijuana.
In December 2012, a second referral was made by a police officer after a domestic
violence incident. The parents had met to discuss problems Sydney was having in
school. Both girls were present. Father blamed Mother for the problems and began
denigrating Mother and Sydney. Sydney told him to “shut up” and spat in his face.
Father put Sydney in a headlock and she punched him. Father tried to punch her and
pushed her off the porch, causing her head to strike a pole. Mother intervened, and he
forcefully grabbed her arm and shoved her off the porch and onto the ground. He shoved
Mother down repeatedly when she tried to get up. Both parents had scratches, but
Mother had extensive cuts and scrapes and a bruised eye where Father had punched her.
Father was deemed the dominant aggressor and was placed under arrest. The police
officer reported that law enforcement had been to Father’s home about eight times for
various reasons. Father was “very aggressive” with the police and engaged in disruptive
behavior when he was taken to jail. Father was released on bail. Father later said that he
was just trying to defend himself. Mother reported that Father suffers from bipolar
disorder for which he takes medication.
Cheyenne reported that the incident was scary and depressing. She had been
enjoying visiting Father and felt they understood one another. He had never threatened
or hit her. Cheyenne said Father was a different person around Mother.
A social worker interviewed Father after his release from jail. He was
argumentative and would not discuss the allegations of emotional abuse or Cheyenne’s
nervous breakdown. He denied abusing the children and said they would be better off in
his custody. He said he planned to seek sole custody of Cheyenne. Father had been
seeing a psychiatrist since 2006 for bipolar disorder and was prescribed psychotropic
medications. His psychiatrist confirmed he was compliant with medication, treatment,
and recommendations.
3
DCFS filed a Welfare and Institutions Code section 300 petition on behalf of
Sydney and Cheyenne on December 24, 2012, alleging Father emotionally abused
Cheyenne and physically abused Sydney and Mother.1
II. The Detention Hearing
On December 24, 2012, the juvenile court detained the children from Father,
released them to Mother pending the next hearing, and ordered DCFS to provide Father
with reunification services and Mother with family maintenance services. The court
ordered no visitation for Father pending further order of the court. On January 8, 2013,
the juvenile court issued a temporary restraining order protecting Mother and the children
from Father.
DCFS interviewed Cheyenne, Sydney, Mother, and Father for the January 23,
2013 jurisdiction and disposition report. Cheyenne said she did not want to discuss
Father’s emotionally abusive behavior. She said she loved her father, had a history of
depression, and experienced anxiety attacks before school. Sydney said Father had been
emotionally abusive to her and Cheyenne, causing Cheyenne to have panic attacks. She
added that Cheyenne had suicidal thoughts, a history of depression, and several
psychiatric hospitalizations. Mother said Father tended to manipulate Cheyenne, and
noted the child had been hospitalized for depression and suicidal thoughts.
Father denied emotionally abusing Cheyenne, but acknowledged she had
emotional problems and a history of depression. He stated, “I want full custody of . . .
Cheyenne. I am unwilling to do any more programs. I have already done parenting
before. If I have to do any more programs then I will just give up custody [of] both of
my children.”
1 All further statutory references are to the Welfare and Institutions Code.
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III. The Jurisdiction Hearing
On June 7, 2013, the juvenile court sustained the section 300 petition and issued a
restraining order against Father through June 7, 2016.2 Specifically, the court sustained
allegations that: (1) Father had physically abused Sydney, endangering her physical
health, safety, and well-being, creating a detrimental home environment, and placing
Sydney and Cheyenne at risk of future harm (§ 300, subds. (a), (b), (j)); and (2) Sydney
and Cheyenne were exposed to a violent altercation between their parents, which resulted
in injury to Mother and arrest of Father, endangering the children’s physical health and
safety and placing them at risk of harm (id., § 300, subds. (a), (b)).
On August 29, 2013, DCFS reported that Father had not visited Cheyenne since
December 24, 2012, because he refused to have monitored visits at DCFS’s offices. On
October 21, 2013, DCFS said Father had a monitored visit with Cheyenne at a mall on
September 21, 2013, and that Cheyenne said she wanted to have telephonic contact with
Father. Cheyenne reported being happy living with Mother, but said she missed Father
and “I miss living with my father because at his house I have my own bedroom; at my
mother’s I sleep on an air mattress.” Cheyenne had not experienced any recent anxiety
attacks, and her psychiatrist was considering discontinuing her Zoloft prescription.
Father said he would participate in conjoint counseling with Cheyenne “for a short period
of time if it leads to full custody.” DCFS noted Father had been very uncooperative and
angry, placing all the blame for case issues on Sydney and Mother.
IV. The Disposition Hearing
On October 23, 2013, Cheyenne testified she had been living with Mother for the
last three years. She denied being afraid of Father and said, “I love my Dad.” Cheyenne
testified she had numerous monitored telephone calls with Father that were “a lot of fun,”
but last visited with him in person in December 2012 (perhaps forgetting the visit on
September 21, 2013). When asked where she preferred to live, she answered, “With my
2 The restraining order permitted Father to have supervised visits with Cheyenne at
DCFS’s offices.
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Dad.” She added, “I miss [Father] dearly and I would have more privacy and space,”
explaining that she had her own room at Father’s home, but had to sleep in the living
room at Mother’s home. Cheyenne’s counsel also asked if Cheyenne would want to have
more contact with Father, i.e., not live with him but have unmonitored visits or revert
back to a custody situation where she was able to spend more time with Father. She
responded, “Yes.” She said she had been hospitalized when she was having overnight
visits with Father, but had not been hospitalized or experienced any anxiety attacks since
visits with him ceased.
Counsel for DCFS asked the juvenile court to remove Cheyenne and Sydney from
Father’s custody and terminate its jurisdiction through a family law order giving Mother
sole legal and physical custody of both children. Counsel for the children recommended
Mother be given sole legal and physical custody, and Father be granted unmonitored
visits with Cheyenne in a neutral setting until visits safely could be liberalized. Mother’s
counsel joined in the requests of DCFS’s and children’s counsel, but asked that
Cheyenne’s visits with Father be supervised by a professional monitor. Father’s counsel
said Father was willing to participate in conjoint counseling with Cheyenne and asked
that she be placed with Father. Counsel for DCFS then asked the juvenile court to keep
Cheyenne’s case open in order to ensure Father was appropriate during visits and the
child was not being adversely affected.
The juvenile court declared Cheyenne and Sydney dependents of the juvenile
court, removed them from Father, and placed them with Mother. As to Sydney, the court
granted Mother sole physical and legal custody, terminated jurisdiction, and ordered that
Father have no visitation. With respect to Cheyenne, the juvenile court noted Father had
not “done his part in terms of addressing the issues that brought the matter before the
court,” and said it would not terminate jurisdiction because it would be inappropriate to
order visitation for Father and not have the “follow through to make sure that . . . those
visits go well.”
Father’s counsel asked the juvenile court to order conjoint counseling between
Father and Cheyenne, but not a parenting class. The juvenile court ordered Father to
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enroll in individual counseling to address case issues, take all of his prescribed
psychotropic medications, participate in Project Fatherhood, and participate in conjoint
counseling with Cheyenne. The court granted Father two monitored visits with
Cheyenne per week, with an additional hour of unmonitored visitation per week in a
neutral setting if he remained compliant with his case plan. The court ordered Cheyenne
to participate in individual counseling to address case issues, undergo conjoint counseling
with Father at the discretion of her therapist, and take all prescribed psychotropic
medications. Father’s counsel objected to the juvenile court’s dispositional findings
removing Cheyenne from Father’s care and ordering Father to participate in programs.
The juvenile court set a section 364 review hearing for April 23, 2014. On
October 24, 2013, the juvenile court modified the restraining order to allow Father to visit
Cheyenne.
This timely appeal followed.
DISCUSSION
I. The Juvenile Court Did Not Abuse Its Discretion by Placing Cheyenne With
Mother
Father argues that the juvenile court abused its discretion by ordering Cheyenne
removed from his custody pursuant to section 361, subdivision (c), noting that as of the
October 2013 hearing, the circumstances necessitating dependency jurisdiction were
unlikely to reoccur. For the reasons that follow, we disagree.
We note as an initial matter that father errs in suggesting that section 361,
subdivision (c) governed the juvenile court’s power to place Cheyenne outside his care.
Section 361, subdivision (c) authorizes a juvenile court to remove a dependent child
“from the physical custody of his or her parents or guardian or guardians with whom the
child resides at the time the petition was initiated.” (Italics added.) Here, although it is
undisputed that Mother and Father shared the right to joint legal and physical custody of
Cheyenne, Cheyenne testified that she had been living with Mother for three years, and
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she had last lived with Father four years earlier when her parents were still married.
Mother thus was the parent with whom Cheyenne resided at the time the petition was
initiated, and section 361, subdivision (c) is irrelevant to the disposition as to Father.
Had the juvenile court removed Cheyenne from Mother’s custody, it could have
ordered Cheyenne placed with Father pursuant to section 361.2, subdivision (a), which
provides that when a court orders removal of a child, it shall determine “whether there is
a parent of the child, with whom the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of Section 300, who desires
to assume custody of the child. If that parent requests custody, the court shall place the
child with the parent unless it finds that placement with that parent would be detrimental
to the safety, protection, or physical or emotional well-being of the child.” The juvenile
court never considered removing Cheyenne from Mother’s custody, however, nor could it
have done so absent clear and convincing evidence that “[t]here is or would be a
substantial danger to [Cheyenne’s] physical health, safety, protection, or physical or
emotional well-being . . . if [she] were returned home, and there [we]re no reasonable
means by which [Cheyenne’s] physical health c[ould] be protected without removing
[Cheyenne] from [Mother’s] physical custody.” (§ 361, subd. (c)(1); see also Cynthia D.
v. Superior Court (1993) 5 Cal.4th 242, 248.) Father does not point to any evidence that
there would be a substantial danger to Cheyenne’s well-being if she remained with
Mother, and we have found in the record no evidence to that effect. While it is true that
Cheyenne said she preferred to live with Father because she missed him and wanted her
own bedroom, she also said she would like it if she could continue to live with Mother
but see Father more frequently. Given this testimony, there could be no finding that
remaining with Mother would present a substantial danger to Cheyenne’s well-being.
Because Cheyenne was not residing with Father at the time the petition was
initiated, removal from him was not required.3 Instead, the court simply determined that
3 Because Cheyenne was not living with Father when the petition was initiated, the
juvenile court erred in ordering Cheyenne “removed” from Father’s custody pursuant to
section 361, subdivision (c). That error was harmless, however. An appellate court “will
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Cheyenne’s placement with Mother continued to be appropriate. Substantial evidence
clearly supports that decision. The record contained ample evidence that placement with
Mother was preferable, and that placement with Father would be detrimental to
Cheyenne’s physical and emotional well-being. Father’s behavior and the conflict among
Cheyenne’s family members plainly affected Cheyenne’s already fragile emotional well-
being. She had experienced anxiety attacks since the age of four, suffered a nervous
breakdown, and been repeatedly hospitalized and prescribed antidepressants. Cheyenne
said Father was aggressive and verbally abusive, calling her and Sydney names and
putting them down about their grades, making Cheyenne feel nervous. Although
Cheyenne had told Father his behavior caused her stress, he was not willing to change it.
Father also engaged in physically abusive conduct that posed a risk to Cheyenne’s
physical and emotional well-being. In December 2012, Cheyenne witnessed Father grab
Sydney’s arm, put her in a headlock, attempt to hit her in the face, throw her off the
porch, and cause her head to hit a pole. She also saw Father punch Mother’s face and
throw her off the porch onto the ground, repeatedly shoving her down each time she tried
to get up. Officer Cole described father as the “dominant aggressor” during the
altercation, and indicated police had responded several times to Father’s home for “one
thing or another.” When father was arrested, he was verbally aggressive and engaged in
disruptive behavior. Father never took responsibility for his actions and blamed Mother
and Sydney for everything. He had not visited Cheyenne in many months because he
refused to take part in monitored visitation, choosing not to see her rather than capitulate
to the juvenile court’s requirements. Father’s willingness to remedy his behavior for
Cheyenne’s benefit was questionable at best. While he indicated he was willing to do
not reverse for error unless it appears reasonably probable that, absent the error, the
appellant would have obtained a more favorable result.” (In re Jonathan B. (1992) 5
Ca1.App.4th 873, 876, citing People v. Watson (1956) 46 Ca1.2d 818, 836.) “[I]t is
judicial action, and not judicial reasoning or argument, which is the subject of review;
and, if the former be correct, [an appellate court is] not concerned with the faults of the
latter.” (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 330; accord People v. Vera
(1997) 15 Cal.4th 269, 272.)
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conjoint counseling with Cheyenne for a short period, he also said he was “unwilling to
do any more programs,” and said, “If I have to do any more programs then I will just give
up custody [of] both of my children.”
Cheyenne’s emotional state had markedly improved by the time of the October 23,
2013 disposition hearing. Cheyenne testified that she had not visited with Father since
December of 2012. During this period, her anxiety attacks had ceased. The progress
may have been due to her not being subjected to Father’s harmful behavior. A
considerable reduction in the intense family conflict she had experienced before was also
a likely factor in her improvement. As such, the juvenile court’s placement of Cheyenne
with Mother, with appropriate visitation with Father in accordance with Cheyenne’s
wishes, was an entirely suitable exercise of the juvenile court’s discretion.
II. The Juvenile Court Did Not Abuse Its Discretion by Maintaining Jurisdiction
Over Cheyenne
Father contends the juvenile court abused its discretion by failing to terminate
dependency jurisdiction over Cheyenne, as it had done with Sydney, and as all counsel
except for DCFS’s counsel recommended. For the reasons that follow, we disagree.
DCFS urges that Father has forfeited the jurisdictional issue because he did not
ask the juvenile court to terminate jurisdiction over Cheyenne and did not object when
the court stated it would retain jurisdiction. We agree. “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.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 221.) Here, although
Father requested that Cheyenne be placed in his care, he did not object to the juvenile
court’s continued jurisdiction over Cheyenne. As such, Father did indeed forfeit this
argument for purposes of appeal.
In any event, we readily conclude that the juvenile court’s decision to continue
jurisdiction over Cheyenne should not be disturbed. As the juvenile court stated, it would
have been imprudent to order visitation for Father without the power to ensure the visits
were appropriate. Father’s history of inflicting physical and emotional abuse was well-
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established, and other than one brief visit at a mall in September 2013, he had not visited
Cheyenne for 10 months. Providing the assistance of DCFS to implement visits was
wise, given the history of conflict between Mother and Father whenever they interacted.
Lack of supervision over Cheyenne’s visits with Father could have exposed Cheyenne to
further domestic violence and emotional abuse, the absence of which coincided directly
with Cheyenne’s marked improvement. The threat of harm to Cheyenne remained
because Father had not taken measures to remedy his behavior, and the case correctly
remained under court supervision to ensure Cheyenne’s well-being as visits with him
resumed.
We also reject Father’s claim that continued jurisdiction was inappropriate
because the circumstances that led to the proceedings no longer existed since the physical
altercation with Mother and Sydney was an isolated incident. That incident was a
culmination of years of conflict and tension between Mother and Father, and Father and
Sydney. The record is replete with evidence that Father acted inappropriately by
speaking harshly about Mother to Cheyenne and criticizing Cheyenne and Sydney. Yet,
Father maintained that he did not need counseling or parenting education and that the
family’s problems were caused entirely by Mother and Sydney. Further, although
Cheyenne had made clear to Father that his behavior caused her stress and had asked him
to change, he had refused to do so. Father’s aggressive conduct when the police
responded to the incident of domestic violence provided further evidence that he did not
consider himself accountable to anyone for how he acted. His obstinate refusal to attend
monitored visits with Cheyenne is additional evidence of his destructive attitude. He
demonstrated no insight or self-awareness into the consequences of his harmful behavior.
It is apparent that Father’s claim that the circumstances that led to the dependency were
no longer present is inaccurate. We therefore conclude that the juvenile court was correct
in continuing jurisdiction over Cheyenne and ordering a comprehensive reunification
plan so that Father’s behavior with Cheyenne could be monitored and he could have the
opportunity to benefit from family reunification services.
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III. The Juvenile Court Did Not Abuse Its Discretion by Ordering Father to
Participate in Counseling and Parenting Education
Father contends finally that the juvenile court abused its discretion by ordering
him to participate in individual counseling and Project Fatherhood. We do not agree.
Section 362 provides that “[i]f a child is adjudged a dependent child of the court, on the
ground that the child is a person described by Section 300, and the court orders that a
parent or guardian shall retain custody of the child subject to the supervision of the social
worker, the parents or guardians shall be required to participate in child welfare services
or services provided by an appropriate agency designated by the court.” (Subd. (c),
italics added.) Further, the juvenile court “may direct any reasonable orders to the
parents or guardians of the child who is the subject of any proceedings under this chapter
as the court deems necessary and proper to carry out this section . . . . That order may
include a direction to participate in a counseling or education program . . . . The
program in which a parent or guardian is required to participate shall be designed to
eliminate those conditions that led to the court’s finding that the child is a person
described by Section 300.” (Id., § 362, subd. (d), italics added.) We review the court’s
order under this section for abuse of discretion. (In re Austin P. (2004) 118 Ca1.App.4th
1124, 1135.)
The juvenile court did not abuse its discretion by ordering father to participate in
counseling and parenting education. Father had clearly demonstrated his need for
individual counseling to address the issues that led to his volatile behavior. We presume
the court ordered him to participate in Project Fatherhood to enable him to gain some
insight into the ways his behavior affected his daughter and to learn more functional
means to deal with conflict for Cheyenne’s benefit. We thus find that the court’s order
that Father participate in Project Fatherhood and individual counseling was entirely
reasonable.
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DISPOSITION
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, J.*
We concur:
EPSTEIN, P. J.
WILLHITE, J.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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