B.R. v. Superior Court CA2/4

Filed 8/30/21 B.R. v. Superior Court 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
B.R., B310686
Petitioner, (Los Angeles County
Super. Ct. No.
v. 18LJJP00806A)
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent.
JUDITH R., a Minor, et al.,
Real Parties in Interest.
ORIGINAL PROCEEDING in mandate. Stephanie
Davis, Judge Pro Tempore. Petition denied.
Los Angeles Dependency Lawyers, Law Office of Jolene
Metzger, Dominika Campbell, and Sergio Quijano for
Petitioner.
Children’s Law Center of Los Angeles-1, Ann-Marissa
Cook, and Sooyun Myoung, for Minor and Real Party in
Interest.
No appearance by Respondent.
_____________________________________________
INTRODUCTION
At a 12-month review hearing held in February 2021,
the juvenile court determined that releasing minor Judith R.
(born December 2006) to the custody of petitioner-father B.R.
would result in a substantial risk of physical detriment to
her, because she had claimed she would kill herself if
returned to his custody. The court terminated Father’s
reunification services and set a permanency planning
hearing under Welfare and Institutions Code section
366.26.1 Father timely challenged this order via a writ
petition for extraordinary relief, and we issued an order to
show cause why the petition should not be granted and
stayed the hearing. While Judith has filed an answer to the
petition, Los Angeles County Department of Children and
Family Services (DCFS) declined to do so.
1 Undesignated references are to the Welfare and
Institutions Code.
2
In his petition, Father argues the court erred in finding
detriment because: (a) based on her history of contradictory
statements and “manufactured threats and episodes,”
Judith’s statements were not credible; (b) Judith’s ability to
receive the same services she was currently receiving would
have adequately protected her if the court had returned her
to Father’s custody; (c) DCFS’s “objective assessment tool”
found no safety concerns in returning Judith to Father; (d)
Father completed his case plan and gained insight into the
issues that occasioned jurisdiction; and (e) the court’s
decision to return Judith’s younger brother Jesus to Father’s
custody when Jesus also suffered from mental health issues
demonstrated that Judith should have been returned, too.
We conclude that: (a) the court was entitled to rely on
Judith’s statements because they were not inherently
improbable; (b) Father forfeited his argument that services
would have adequately protected Judith by failing to raise
the argument below and, in any case, such services would
not have sufficiently protected her; (c) Father forfeited his
argument about DFCS’s “objective assessment tool” both by
failing to raise the argument below and by failing to cite to
the record in his petition; (d) substantial evidence supported
the court’s finding that Father lacked sufficient insight into
Judith’s mental health issues; and (e) Jesus was sufficiently
differently situated that the court’s returning him to Father
had little bearing on the proper outcome for Judith. We
therefore deny Father’s petition and lift the stay we
previously imposed on the section 366.26 hearing.
3
STATEMENT OF RELEVANT FACTS
A. The Family and Prior DCFS Involvement
Petitioner is the father of minors Judith R. and Jesus
R. (born October 2008). Mother F.C. did not participate in
these proceedings, but a previous petition had been filed
against her, alleging she had a history of substance abuse,
was currently abusing methamphetamines, and suffered
from mental and emotional problems. DCFS reported that
Mother had been out of the family’s lives since February
2013, that her whereabouts were unknown, and that Father
and the children were living with Father’s girlfriend and her
children.2
Between 2017 and 2018, DCFS received five referrals
regarding the children, alleging physical abuse and general
neglect. In investigating one such referral, DCFS noted that
Judith had been hospitalized for hearing voices and being a
danger to herself. All but one referral were closed as
inconclusive; for the substantiated referral -- alleging
general neglect by Father -- Father agreed to voluntary
family maintenance.
B. DCFS Investigates the Current Referral
On November 20, 2018, DCFS received a referral from
the child abuse hotline alleging that domestic violence had
been occurring at the family home in the presence of the
2 Because the parties refer to Father’s girlfriend as
“Stepmother,” we do so as well.
4
children. Stepmother alleged that most recently, while
intoxicated, Father hit and choked her, and stopped only
because the children physically intervened. Other violent
incidents had occurred as well, with Father as the aggressor.
Stepmother stated Father drank excessively and periodically
used crystal methamphetamine. She further claimed his
substance use caused him to verbally and emotionally abuse
the children. Stepmother also reported that Father had
struck Judith in her ribs with his fist hard enough to leave a
bruise. Father had vacated the house without the children,
but had stated he intended to take them to stay with his
brother, whom Judith had previously accused of sexually
abusing her.3 DCFS investigated the same day.
A children’s social worker (CSW) spoke with
Stepmother, who confirmed the information in the referral.
Stepmother additionally reported that she and Father had
learned the previous year that Father was not Judith’s
biological parent, and while they initially withheld this
information from Judith, recently Father had been telling
Judith she was not his daughter and had threatened to leave
Stepmother’s house with Jesus but not Judith.
Judith, who was wearing a hoodie, removed her hood to
show the CSW that she had cut her hair, which she had done
because “‘the voices in her head told her it was her fault,’”
referencing a lie Father had forced her to tell about
3 It was also reported that Father had angrily instructed
Judith to say she had fabricated the claim of sexual abuse by her
uncle, so that the uncle would not get into trouble.
5
Stepmother hitting her and Jesus. Judith stated that she
wanted to stay with Stepmother and did not want to live
with Father, who would constantly undermine Stepmother,
blaming her for Judith’s troubles. She confirmed the
incident in which Father punched her in the ribs. She also
confirmed the incident in which Father assaulted
Stepmother. Judith had been diagnosed with PTSD,
cerebral palsy, and a congenital brain migration, and both
children had “documented behavioral and developmental
problems that stem from trauma while in the care of mother
F[.] C[.]” Judith had been prescribed and was taking Zoloft
and Seroquel. Jesus was taking Guanfacine.
The CSW also spoke with Father, who denied the
allegations and claimed Stepmother had coached the
children. Father contended many of the children’s
behavioral problems arose from their exposure to
Stepmother. He did not believe the children needed
medication.
On November 29, 2018, the court issued an order
removing the children from Father, and DCFS placed them
with Stepmother.
C. DCFS Files a Petition and Investigates
Further
On December 4, 2018, DCFS filed a petition alleging
six counts under section 300, subdivisions (a), (b)(1), and (j).
Counts a-1, b-2, and j-1 identically alleged that in October
2018, Father physically abused Judith by striking her with
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his fist. Counts a-2 and b-3 identically alleged that in
November 2018, Father pushed Stepmother onto a couch
and choked her while in the children’s presence, requiring
the children to intervene on her behalf. Count b-1 alleged
that Father had a history of substance abuse and was a
current abuser of alcohol, cared for the children while under
the influence of alcohol, and possessed methamphetamine in
the children’s home. The court found a prima facie case and
detained the children.
In a further interview with Judith, she told a
dependency investigator that when she lived with Father, he
would threaten to hit her with a belt, tell her she was not his
daughter, and curse at her. Judith also confirmed her
previous statements that Father had punched her in the
ribs, that her uncle had molested her and Father had asked
her to lie about it, and that Father had assaulted
Stepmother. Stepmother confirmed the statements she
made to the CSW.
Father again denied all allegations and suggested that
Stepmother was coaching the children. He claimed the
children behaved differently during their visits with him,
attributing the difference to Stepmother’s “‘trying to turn my
kids against me.’”
After concerns were raised by the children’s
wraparound team regarding whether Stepmother had been
coaching the children, they were placed in foster homes on
April 15, 2019. On April 23, 2019, Judith was admitted to a
hospital for a psychological evaluation due to expressing
7
feelings of wanting to self-harm. The next day, the court
ordered that the children have no contact with Stepmother.
D. Adjudication and Disposition
At the April 29, 2019 adjudication and disposition
hearing, Father agreed to plead no contest to an amended
count b-1, stipulating there was a factual basis for that
count. As amended, the count alleged that Father “was
unable to obtain appropriate mental health services for the
children. The children have special needs that require
consistent services. The child Judith does not wish to return
to her father’s care at this time. Said conduct by the father,
if left unresolved, places the children at risk of harm.” The
court dismissed all other counts. The children were removed
from Father and he was provided with reunification services.
Father was ordered to complete ten random drug tests, take
a parenting class, undergo individual counseling to address
case issues, and participate in conjoint counseling with the
children.
E. Between Disposition and the Six-Month
Review
In an October 2019 status report for the six-month
review hearing, it was noted that Judith had anger issues,
which escalated to the point of her “blacking out and not
remembering.” She became “verbally aggressive and
assaultive towards” her foster mother, who stated these
episodes occurred after returning from visits with Father. In
September 2019, Judith had reported seeing a “‘Little
8
Monster’” who would tell her to hurt herself or others.
Though Father and Jesus reported no issues with Father’s
visits with the children, DCFS expressed concern that
Father thought Judith did not actually suffer from mental
health problems but was instead manipulating the system.
In a December 2019 supplemental report, Judith’s
foster mother reported Judith still had “escalated behaviors
of being verbally aggressive by yelling, cursing, and
attempting to hurt herself.” Judith continued receiving
wraparound services and taking her medication. In mid-
December, Judith attempted to cut herself at school with a
soda can tab, because she was upset about the death of a dog
in the foster home. Judith did not deny screaming at her
brother and foster mother; she had no explanation for her
behavior, only that she was sometimes irritated. The report
also noted that while Father was in compliance with his case
plan, DCFS was concerned he did not “fully grasp mental
health as opposed to behavioral issues.” At the six-month
review hearing, the court found Father had made
substantial progress in alleviating or mitigating the causes
necessitating placement, but that continued jurisdiction was
needed.
F. Between the Six-Month and Twelve-Month
Reviews
A February 2020 last minute information noted that
Judith continued to have weekend visits with Father. DCFS
confirmed that if Judith were returned to Father’s custody,
9
she would still receive services from the agency currently
providing her with wraparound services but would be
assigned a new team based on the location of Father’s home.
In a second February 2020 last minute information,
DCFS reported concerns that Judith was visiting with
Mother. Judith told both DCFS and her wraparound team
that she had seen Mother twice and, along with Father and
Jesus, had slept over at the home Mother shared with
Judith’s adult sister. While Father denied any contact with
Mother and acknowledged that Judith had special needs and
needed to continue receiving wraparound services, DCFS
expressed concern both with Father’s potentially allowing
Mother to have contact with the children, and with his
ability to provide Judith with appropriate services based on
his request to have wraparound services meet with the
family in a public place instead of at his home.
In a June 2020 status report for the twelve-month
review, DCFS reported Judith was still receiving
wraparound services, and was meeting weekly with an
individual therapist. Judith had two episodes of being upset
enough to “‘see red,’” and she refused wraparound services
for approximately four weeks. She loved Father and wanted
to return to him but was conflicted because she loved her
current foster mother. The foster mother stated that if
Judith did not reunify with Father, she would like to adopt
her. In an August 2020 Child and Family Team meeting,
Judith expressed unhappiness at the plan to return her to
Father’s custody, opining that Father was not ready, that
10
she was concerned about schools, and that Father did not
communicate with or pay attention to her.
Two weeks later, Judith’s therapist reported that he
had been unable to speak with Judith, and that her foster
mother stated she was having suicidal ideations, verbalizing
suicidal comments, and drawing suicidal figures. After the
CSW visited the foster mother’s home and instructed her to
safeguard the items Judith could use to commit suicide, the
CSW asked Judith whether she had a plan regarding
suicide. Judith stated she did not, but laughed and said,
“‘There are other ways to do this.’” She refused to elaborate.
In September 2020, Judith’s therapist reported a
“‘[m]eltdown’” and advised the foster mother to take Judith
to a certain hospital’s psychiatry department for an
evaluation; the foster mother instead brought Judith to
another hospital, where they instructed her to “keep watch”
over Judith.
In a November 2020 last minute information, DCFS
reported that on September 30, 2020, Judith stated she did
not want to return to Father and wanted to stay with her
foster mother. She acknowledged that her behavior was
“escalating,” and she was becoming “verbally and physically
aggressive.” Judith also claimed she had seen Mother again,
when Father took her to get her hair done. Judith reported
Father had threatened that if she did not return to his home,
she could “forget about him and her brother.” DCFS noted it
continued to recommend conjoint counseling for Judith and
Father, but Judith refused.
11
The last minute information additionally described an
incident on October 23, 2020, when Judith refused to visit
with Father because she had posted an LGBTQ flag on social
media and when questioned, told Father she was gay.
Judith reported Father began yelling at her to take the post
down, claiming she was confused and that he wanted her to
get married and have kids. Father denied yelling at Judith
but admitted to requesting she remove the social media post.
He stated that if Judith were gay, that would be “up to her,”
but if she were confused, she could get help. Father opined
that Judith was going through a teenage phase and might be
a little crazy, but eventually admitted that he knew “no one
can change his daughter and that he knew a long time ago
that his daughter liked girls.” Father acknowledged he
needed to support and love Judith “no matter what,” and
that he would continue doing so. He stated that while
Judith did not like it when he set boundaries, she was happy
when she visited, and her behavior changed when she
returned to her foster mother. On October 26, 2020, Judith’s
therapist advised that Judith was not ready for conjoint
therapy with Father, and that the therapist would have
sessions with Father to “psycho educate him” regarding
Judith’s behaviors. On November 6, 2020, Judith reported
she did not want to visit Father for fear that he would “judge
her for being the way she is.” Judith continued to refuse
conjoint counseling.
On November 17, 2020, Judith reported she did not
want to return to Father, for fear that he would yell at and
12
hit her. She reported that he did not understand she was
gay, that he yelled at her and blamed her for having to take
classes, and that he would complain about money. Judith
described an incident in which Father threw her cell phone
on the floor hard enough to break it after she shaved an
eyebrow during a visit. Father also instructed her not to
play with her gay foster brother for fear of being influenced
and told her to lie to DCFS about seeing Mother. On
November 19, 2020, the court specifically ordered that
Mother was not to have any access to Judith, and Father
was not to permit Mother to have such access.
On November 24, it was reported that Judith had been
having suicidal ideations for several days; Judith reported
seeing the “monster” again, and it was telling her to hurt
herself. She was waking up during the night with
nightmares, and became more irritable, though her therapist
did not believe she had a plan or intent for suicide, and thus
was in no imminent danger. Judith stated that if she were
to be returned to Father, she would hang herself.
On December 1, 2020, DCFS was informed that Judith
and her foster family had been exposed to COVID-19 at
church the previous day. Judith reported no COVID-19
symptoms but admitted to feeling suicidal; she stated
“‘court’” was causing her stress. On December 23, 2020, the
foster mother reported being upset because Father had a
birthday celebration for Judith with many attendees, and no
one wore masks.
13
On January 20, 2021, DCFS and wraparound services
had a meeting with Judith, and both she and her foster
mother reported she had not had any suicidal thoughts in
the last month. However, Judith maintained she did not
want to return to Father because she was afraid of him. The
foster mother reported Judith had seen Mother at least ten
times, that when Judith visited Father, they would go to
gatherings without masks, that Father would leave the
children in the car for hours, and that Father drank and
drove with the children. Judith confirmed these statements.
In a meeting with Father on January 28, 2021, Father
again reported that Judith did not behave around him the
way she appeared to be behaving with her foster mother and
opined that the foster mother was manipulating Judith into
wanting to stay with her. The wraparound team continued
to report that Judith maintained she would kill herself if
forced to return to Father.
G. The 12-Month Review Hearing
At the 12-month review hearing on February 8, 2021,
the court terminated jurisdiction as to Jesus, finding that
the conditions that had prompted jurisdiction no longer
existed and were unlikely to recur if jurisdiction was
terminated.
As for Judith, Father’s counsel asked the court to
continue the hearing to permit conjoint counseling to occur,
or for a custody evaluation to be performed, but the court
denied the request, stating it had “more than enough
14
information” to assist in its decision. Judith’s counsel
requested the court terminate reunification services and set
the matter for a permanency planning hearing. Counsel
noted that Judith was still “adamant” in not wanting to
return to Father, either that day or in the future; instead,
she wanted her foster mother to become her legal guardian.
Judith’s counsel recounted Judith’s history of negative
behavior and mental health issues, and contended that while
Father had made progress, he still did not know how to
communicate with Judith, and did not take her mental
health issues seriously. Father’s counsel argued that Father
had done everything asked of him and had a safe and stable
home for Judith. He contended that Judith’s threats of
suicide were not evidence of an actual risk of harm, but
rather an attempt to hold the court hostage. Arguing that
Judith had visited Father multiple times without issue,
Father’s counsel contended there was no risk of harm, and
Judith should be returned to Father. DCFS’s counsel did not
argue, but the court acknowledged its recommendation was
to terminate jurisdiction and return Judith to Father.
The court indicated it had reviewed all the evidence
and while Father had complied with the case plan, he had
not gained an understanding of Judith’s individual needs.
While the court recognized that Judith could be
“manipulating the system,” the court believed she was
“emotionally and mentally fragile.” Though visits with
Father had gone well, this meant only that Judith could visit
with Father; it was not evidence she could live with him full-
15
time. The court pointed out that, despite everything Father
had learned, he still reacted inappropriately to Judith’s
social media post regarding her sexual orientation and,
while he later came to understand how he should have
reacted, “the damage to Judith had already been done.”
Additionally, the court suspected Father was letting Mother
have contact with Judith, which would be in violation of
court orders and would demonstrate a lack of insight. The
court also discussed the birthday party Father threw for
Judith where many people were present without masks. The
court opined these were all “small things that continue to
convince the court that there is a general lack of insight” and
that “Father is not taking Judith’s conditions and her
actions seriously.” Thus, the court found that returning
Judith to Father’s care would “cause Judith emotional and
thereby physical distress and detriment . . . because the
court has reason to believe that she will hurt herself.” The
court terminated Father’s reunification services and ordered
a permanency planning hearing under section 366.26.
Father timely challenged this order by writ petition, and we
issued an order to show cause and stayed the hearing.
DISCUSSION
We review for substantial evidence an order setting a
permanency planning hearing under section 366.26. (Angela
S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
“Under this standard of review[,] we examine the whole
record in a light most favorable to the findings and
16
conclusions of the juvenile court and defer to the lower court
on issues of credibility of the evidence and witnesses.
[Citation.] We must resolve all conflicts in support of the
determination and indulge all legitimate inferences to
uphold the court’s order. Additionally, we may not
substitute our deductions for those of the trier of fact.” (In re
Albert T. (2006) 144 Cal.App.4th 207, 216-217.)
At the 12-month review hearing, the court “shall order
the return of the child to the physical custody of his or her
parent . . . unless the court finds, by a preponderance of the
evidence, that the return of the child to his or her parent . . .
would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child.”
(§ 366.21, subd. (f)(1).) Here, the court found that returning
Judith to Father’s care would “cause Judith emotional and
thereby physical distress and detriment . . . because the
court has reason to believe that she will hurt herself.”
Father argues the court erred in making this finding
because: (a) based on her history of contradictory
statements and “manufactured threats and episodes,”
Judith’s statements were not credible or of solid value; (b)
Judith’s continued participation in services if returned to
Father would have adequately protected her; (c) DCFS’s
“objective assessment tool” found no safety concerns; (d)
Father completed his case plan and gained insight; and (e)
the court’s decision to return Jesus to Father’s custody when
he had mental health issues demonstrated that Judith too
17
should have been returned to Father. We find none of these
arguments persuasive.
A. The Court Was Entitled to Believe Judith’s
Statements
Father argues that because Judith had a history of
deception, because she had previously threatened to kill
herself, and because her statements to DCFS were
contradicted, the court was not entitled to rely on her
statements to reach its conclusion that she would be in
danger if returned to Father. We do not second-guess a trial
court’s determination of credibility. (In re S.C. (2006) 138
Cal.App.4th 396, 415.) “We cannot reject the testimony of a
witness that the trier of fact chooses to believe unless the
testimony is physically impossible or its falsity is apparent
without resorting to inferences or deductions. As part of its
task, the trier of fact may believe and accept as true only
part of a witness’s testimony and disregard the rest. On
appeal, we must accept that part of the testimony which
supports the judgment.” (In re Daniel G. (2004) 120
Cal.App.4th 824, 830; see also People v. White (2014) 230
Cal.App.4th 305, 319, fn. 14 [“under the principles governing
review for the existence of substantial evidence, the
testimony of a witness is ordinarily sufficient to uphold a
judgment ‘even if it is contradicted by other evidence,
inconsistent or false as to other portions’”]; ibid.[“‘“Testimony may be rejected only when it is inherently
improbable or incredible, i.e., ‘“unbelievable per se,”’
18
physically impossible or ‘“wholly unacceptable to reasonable
minds’”’””].)
Whatever Judith’s other statements, she expressly
stated she would kill herself if returned to Father’s custody.
While not required to credit the statement, the court was
entitled to consider it in the context of other evidence.
Judith had repeatedly expressed suicidal ideation,
previously attempted to cut herself, been hospitalized for
psychiatric reasons, and been diagnosed with both physical
and mental disorders. Because there is nothing inherently
improbable or incredible in her statement, and it is neither
physically impossible nor wholly unacceptable to reasonable
minds, we accept it as substantial evidence.4 It is irrelevant
whether other evidence might have supported a conclusion
that Judith was not serious about killing herself, because
when “‘“‘two or more inferences can reasonably be deduced
from the facts,’ either deduction will be supported by
substantial evidence, and a ‘reviewing court is without
power to substitute its deductions for those of the trial
court.’”’” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
4 Father points out the court lacked evidence from mental
health professionals. None was needed. (See Laurie S. v.
Superior Court (1994) 26 Cal.App.4th 195, 202 [if decision
whether child is at substantial risk of harm can be made within
ordinary experience, expert testimony is unnecessary].) Given
the court’s determination that Judith’s threat to kill herself was
sincere, ordinary experience sufficiently informed the court’s
decision that such an outcome would place Judith at substantial
risk of harm.
19
B. Father Has Forfeited the Argument That the
Court Erred in Failing to Consider That
Judith Would Have Access to Services in His
Custody
Father argues the court erred by not considering the
safeguards that would be in place if Judith were returned to
his care. Specifically, he argues that “[w]hile in the care of
the foster parent, Judith continued to have breakdowns and
suicidal ideations, which were dealt with by the Department
and Judith’s therapy team. . . . The same resources and
referrals could have been provided to Father to assist with
the breakdowns in Judith’s health.”
Father has forfeited this argument by failing to raise it
below. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221 [“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”]; id. at 222 [“Forfeiture . . . applies in juvenile
dependency litigation and is intended to prevent a party
from standing by silently until the conclusion of the
proceeding”].)
Moreover, given the court’s determination that Judith
was serious in her stated intention to kill herself if returned
to Father’s custody, there would be no error in concluding
that continued services would be insufficient to protect
Judith. First, Judith was already receiving those services
while in the care of her foster mother, and they did not
prevent her from declaring she would kill herself if returned
to Father -- there is no reason to think they would be any
20
more successful if her perceived doomsday scenario were to
materialize. Second, Father does not explain how the
services currently provided to Judith could prevent her from
committing suicide. No service could watch Judith every
minute of every day, and if the court ignored her express
declaration of her intention if returned to Father, there is no
reason to believe she would reiterate it before acting to her
detriment.5
C. Father Has Forfeited Any Argument
Regarding the DCFS “Objective Assessment
Tool”
Father argues the court erred in not considering the
findings by DCFS’s “objective assessment tool” that Judith
could safely be returned to Father. Like his argument
regarding sufficient safeguards, Father has forfeited this
argument by failing to raise it below. (In re Dakota H.,
supra, 132 Cal.App.4th at 221, 222.) He has also forfeited it
on appeal by failing to cite to the record regarding this
“objective assessment tool.” (Cal. Rules of Court, rule
8.452(b)(3) [memorandum accompanying writ petition to
review order setting hearing under section 366.26 “must
support any reference to a matter in the record by a citation
5 Citing David B. v. Superior Court (2004) 123 Cal.App.4th
768, Father argues that the court should have returned Judith to
his care because “an absolute guarantee of safety” is not required.
But not requiring an absolute guaranty of safety does not equate
to dispensing with any guaranty of safety.
21
to the record”]; see also WFG National Title Ins. Co. v. Wells
Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“we may
decide that the appellant has forfeited a point urged on
appeal when it is not supported by accurate citations to the
record”].) In any case, Father cites no authority holding that
the results from this assessment tool are dispositive and
override all other considerations.
D. The Court Justifiably Found Father’s
Insight Insufficient
The court found that incidents such as Father’s
throwing a birthday party for Judith in which the many
attendees failed to wear masks despite the ongoing
pandemic, and his reaction to Judith’s declaration that she
was gay, “continue to convince the court that there is a
general lack of insight” and that “Father is not taking
Judith’s conditions and her actions seriously.” Father agrees
that a parent’s lack of insight is evidence a court may
properly consider when deciding whether a child may be
returned safely to the parent, but argues he is being held to
an “impossibly high standard.” In particular, Father
contends his reaction to Judith’s coming out was reasonable,
and that it was unfair to fault him for holding a birthday
party that potentially exposed Judith to COVID-19 when
Judith had already been exposed to COVID-19 from
attending church with her foster mother. Additionally,
Father argues that he had improved significantly from when
the case was originally brought. We are unpersuaded.
22
We discern no error in the court finding that Father’s
reaction to Judith’s coming out demonstrated a lack of
insight. Judith was emotionally and mentally fragile.
Coming out is a distinctly vulnerable moment in any
person’s life, and particularly in the life of a teenager
suffering from severe mental health problems, including
suicidal ideation. Father’s reaction to Judith’s publicly
declaring her homosexuality was to yell at her and suggest
she was confused, even though he later admitted he always
knew she “liked girls.” Father argues he is entitled to his
beliefs on homosexuality and cannot be faulted for failing to
“immediately accept” Judith’s coming out. He misses the
point. The court did not hold his beliefs on homosexuality
against him; rather, it determined that his yelling at his
daughter about her sexual orientation at a particularly
vulnerable time was evidence that he lacked insight into her
mental health issues, and what could trigger them.
Regarding Father’s complaint that it was unfair the
court chided him for holding an unmasked birthday party for
Judith with many unmasked attendees when Judith had
already been exposed to COVID-19 at the foster mother’s
church, Father presents no evidence regarding the
circumstances of the church gathering, where exposure
might have occurred despite the presence of safeguards. By
contrast, it is undisputed that Father failed to insist that
attendees at the party he hosted wear masks. In any event,
given Father’s responsibility to safeguard his daughter’s
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well-being, it is irrelevant that her health might previously
have been jeopardized.
Finally, while it is commendable that Father made
progress from the time of Judith’s detention, the question
before the court was whether he had gained sufficient
insight into Judith’s mental health issues and how to
address them. (See, e.g., In re Dustin R. (1997) 54
Cal.App.4th 1131, 1143 [“simply complying with the
reunification plan by attending the required therapy
sessions and visiting the children is to be considered by the
court; but it is not determinative. The court must also
consider the parents’ progress and their capacity to meet the
objectives of the plan”].) Taken as a whole, the record
supports the court’s conclusion that he had not.
E. Jesus Was Differently Situated
Father argues that because both Judith and Jesus “had
been found to have special needs the Father did not take
care of,” and the court returned Jesus to Father’s care, the
court “erred in finding Judith was so differently situated
that Father posed a risk to her, but not to Jesus.” We
disagree.
Substantial evidence supported the court’s
determination that Judith was so differently situated that
Father posed a risk to her, but not Jesus. Judith had
multiple incidents of suicidal ideation. She had a “little
monster” who told her to hurt herself. She had been yelled
at by Father over her sexual orientation. Jesus had none of
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these issues. Put simply, the court found Judith to be
emotionally and mentally fragile but made no similar finding
regarding Jesus. Thus, the court’s determination that Jesus
could safely be returned to Father’s custody mandated no
similar conclusion for Judith.
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DISPOSITION
We deny Father’s petition, and lift the stay previously
imposed on the section 366.26 hearing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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