In re Evan F. CA2/7

Filed 9/23/13 In re Evan F. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re EVAN F., a Person Coming Under the B243861
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK88926)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
GREG F.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Sherri
Sobel and Stanley Genser, Juvenile Court Referees. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant Greg F.
Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant
and Respondent Helen D.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Denise M. Hippach, Deputy County Counsel for Plaintiff and Respondent.
_______________________
Greg F. contends that there was insufficient evidence to support the juvenile
court‟s findings with respect to him at the jurisdictional hearings concerning his son,
Evan F. He also asserts that the court failed to make appropriate findings in conjunction
with its removal orders and that there was not clear and convincing evidence of detriment
if Evan F. were to be placed with him. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Evan F. was born to Helen D. and Greg F. in May 2010. Evan F. became a
dependent child of the juvenile court based on sustained allegations relating to both his
parents. A full recitation of the history of this complicated matter is not necessary to
resolve the appeal; we present only the factual and procedural history relevant to the
issues presented on appeal.
A. Domestic Violence
In June 2011 Greg F. and Helen D. were considering terminating their relationship
and making custodial arrangements for Evan F. According to Helen D.‟s declaration, on
June 29, 2011, Greg F. came home and held Evan F. as he and Helen D. began discussing
custody of Evan F. Greg F. was angry because Helen D. did not agree with his proposal.
As he spoke, he “became angrier and more agitated. [His] hands began shaking while
holding Evan.” Evan F., who had been laughing before his father picked him up, began
to cry. Greg F. did not react to his cries, continued to hold him, and would not permit
Helen D. to hold him. Greg F. argued with Helen D., accused her of tape recording the
conversation, pulled a recording device from his pocket, and then “got in [Helen D.‟s]
face, stood over [her] and was aggressively shaking the tape recorder in [her] face.”
Greg F. told Helen D. that he was giving her ex parte notice and that she should
appear at the Santa Monica courthouse the following Friday. He took Helen D.‟s
Blackberry from her, returned it to her briefly, and then seized it again. He again
returned the Blackberry to her, but “continued to follow [her] in the apartment and would
not let [her] get away from him.”
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Helen D. declared, “At one point, I sat down in a chair while [Greg F.] continued
to berate me. [Greg F.] continued to get in my face and yell at me. [Greg F.] is
approximately, 6 feet tall and weighs 180 lbs. I, on the other hand am 5‟2” tall and weigh
approximately 104 lbs. He is very intimidating. I was terrified. The Respondent‟s hands
were still shaking while holding Evan. I repeated my request to hold Evan and [Greg F.]
ignored me. [Greg F.] continued to stand over me. [¶] [Greg F.] grabbed both my
Blackberry and my cell phone (which had been in my pocket) from me. I tried to grab
both from him and in the process, [Greg F.] scratched my hand and grabbed my wrist,
leaving bruises on my wrist which appeared the next day, June 30, 2011. I said to
[Greg F.], you are scaring me. Please leave Evan with me and go for a walk. [Greg F.]
demanded that Evan and I go for a walk with him. I refused. [Greg F.] stated that I was
„ruining this family.‟ [Greg F.], while holding Evan in one arm, started slamming his
body against me and elbowing me. . . . When his body slammed into me, it hurt and I
was fearful for my safety. I begged him to step away from me and asked for my phone. I
said, „I am going to call the police.‟”
Helen D. was “extremely terrified” because Greg F. was becoming physically
violent and also had control of all the telephones in the apartment. She began moving
toward the patio door and asked Greg F. to give her the telephone. A security guard
called out from downstairs, asking if she wanted him to call 911. Greg F. told him that
there was nothing wrong, but Helen D. asked him to call the police. Greg F. then left,
taking Evan F. and both of Helen D.‟s telephones.
Greg F. was arrested on June 30, 2011, for inflicting corporal injury on a
cohabitant (Pen. Code, § 273.5), and an emergency protective order was issued. Greg F.
violated the protective order on July 5, 2011, by accompanying his mother to pick up
Evan F. from Helen D., knowing that Helen D. would approach with the child. Helen D.
sought a domestic violence restraining order on July 7, 2011. The court issued a
temporary restraining order prohibiting Greg F. from contacting Helen D. or Evan F. until
July 28, 2011.
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The hearing on a permanent restraining order was set for July 28, 2011, but by that
time dependency proceedings had commenced; accordingly, the family law court referred
the restraining order issue to the juvenile court. In August 2011, the juvenile court
considered Helen D.‟s request for a permanent restraining order. In addition to
describing the June incident, her declaration provided additional information about
Greg F.‟s behavior. According to Helen D., the June incident was not the first time that
Greg F. had been violent with her. Previously, when she had attempted to discuss
problems in their relationship, Greg F. had pushed her, insisting there were no problems.
Greg F. had deliberately stricken her with Evan F.‟s stroller “by pushing it into [her] in a
violent manner in an effort to control [her] or [her] behavior.” Greg F. also physically
intimidated his other child, Evan F.‟s half-brother.
Helen D. understood Greg F.‟s violation of the emergency protective order as a
message from Greg F. that he “wanted [her] to know that he was in control and could do
what he wanted.” This was in keeping with prior controlling behavior of Greg F., who
acted differently in private than in public, had sudden and intense mood swings and bouts
of anger, and blamed Helen D. for problems. In April 2011 Greg F. became enraged after
Helen D. tossed a few pieces of mail at him while they cleaned off their dining room
table. Greg F. angrily swept everything off the table onto the floor and threatened, “[I]f
you do something to me you will get it back tenfold.” Greg F. followed Helen D. went
into the bedroom, and continued to scream at her in a threatening manner, including
threats that if she did not agree to his proposed custody arrangements she would not see
Evan F. In other incidents he called Helen D. degrading epithets, isolated her from her
family and friends, and exercised complete control over Evan F., down to refusing to
hand Evan F. to her. The juvenile court issued a one-year restraining order against
Greg F. on August 18, 2011.
In addition to the above evidence, further information pertaining to the issue of
domestic violence was admitted into evidence at the jurisdictional hearing. The security
guard who intervened during the June incident declared that he had heard Helen D.
“repeatedly requesting the man to return her telephone, give her her baby, and to leave.
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She stated, „Greg, give me my phone. Greg[,] I want you to leave now. Greg, give me
my baby.‟ It was clear from the tone of her voice that she was very upset.” He went to
the apartment. Greg F. denied that there was a domestic dispute and refused to give
Evan F. to Helen D. The guard saw Greg F. leave with Evan F. and two cellular
telephones.
Evan F.‟s maternal grandfather told Department of Family Child Services (DCFS)
about his concerns about Greg F., whom he described as controlling and verbally abusive.
Greg F. monopolized Evan F. and would not permit others to be with him. In May 2012,
the maternal grandfather heard Greg F. screaming insults and obscenities at Helen D., and
in late June, he was present soon after the incident of domestic violence for which
Greg F. was arrested. He saw scratches on Helen D.‟s hand. A friend of Helen D.‟s
detailed in a declaration Greg F.‟s rages, isolating and controlling behavior, and his
demeaning behavior toward Helen D., all of which occurred in front of Evan F.
B. Helen D.‟s Psychotic Episode
On July 8, 2011, Helen D. dropped Evan F. off a second story balcony and then
jumped from the balcony herself. Evan F. sustained only bruising from the fall.
Helen D., with a sprained ankle and displaying symptoms of psychosis, was taken into
protective custody. Criminal proceedings were subsequently instituted against her;
DCFS detained Evan F. and commenced dependency proceedings.
Helen D. was ultimately diagnosed with having undergone an acute psychotic
episode. After approximately one week of hospitalization, she began to improve. As she
recovered, Helen D. was able to advise her caregivers that she had been under the
delusion that she and Evan F. had superhuman powers and were immune to physical
injury; she understood that these were psychotic beliefs and became tearful at the risk she
had posed to her son. She was discharged from the hospital on July 27, 2011; at the time
of discharge, there was no evidence of psychiatric symptoms, and Helen D. was
described as having “excellent insight and judgment regarding her situation. The
psychotic delusions and ideas that le[]d to the jump off the balcony and other bizarre
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events had clearly resolved and were no longer endorsed by the patient.” Helen D.‟s
prognosis was “excellent,” based on a series of factors: her insight into her condition; her
willingness to comply with medication and treatment; her high level of functioning prior
to the psychosis; the acute onset of her psychosis; and her rapid response to medication.
Helen D. immediately began outpatient psychiatric care upon her discharge. She
attended group therapy an average of 15 hours per week, fully complied with her
protocol, and was described by her psychiatrist as an “enthusiastic participant” in
treatment.
At all times after her release through adjudication and disposition, Helen D. was
under psychiatric care and monitoring. Her psychiatrist advised the court that Helen D.
was bipolar, and that she continued to have full insight into her condition; demonstrated
dedication and strict adherence to her treatment plan; was stable with no signs or
symptoms of mania or psychosis; and posed no foreseeable risk of harm to herself or
others. He testified that Helen D. was “within the top five of compliant patients I‟ve ever
treated.”
C. Dependency Petitions and Initial Adjudications
Multiple dependency petitions were filed in this matter, and allegations were
adjudicated at different times. Initially, DCFS filed a dependency petition on July 18,
2011, in which it alleged that Evan F. came within the jurisdiction of the juvenile court
under Welfare and Institutions Code1 section 300, subdivisions (a) and (b). Under
subdivision (a), one allegation pertained to Helen D.‟s conduct while psychotic, and a
second allegation concerned the June altercation between Greg F. and Helen D. The
petition included three subdivision (b) allegations: one concerning the abuse inflicted by
and risk posed by Helen D. while she was psychotic; one describing Helen D.‟s mental
health history and failure to take her medication, as well as Greg F.‟s failure to act to
protect Evan F. given his knowledge of Helen D.‟s mental health problems and her
1 All further statutory references are to the Welfare and Institutions Code.
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noncompliance with the medication regimen; and one pertaining to the June incident of
domestic violence.
In August 2011, DCFS filed a first amended dependency petition. The section
300, subdivision (a) allegation pertaining to domestic violence was rephrased to read:
“The child‟s mother, Helen [D.] . . . and the child‟s father[] have engaged in altercations
over the care and custody of the child and . . . on one occasion, June 30, 2011, a physical
altercation resulted when the mother attempted to grab the child from the father‟s arms
after father threatened to remove the child from mother‟s care and custody. Such violent
conduct between the parents in the presence of the child endangers the child‟s physical
health and safety and places the child at risk of physical harm.” The subdivision (b)
allegation concerning the balcony incident was amended to include language stating that
Greg “knew of mother‟s mental and emotional problems and noncompliance with
medication [and] failed to protect the child.” A further allegation was added under
subdivisions (b) and (d) stating that in 2009 Greg F. had sexually abused a non-related
child, also endangering Evan F.
In November 2011, Helen D. pleaded no contest to an amended section 300,
subdivision (b) allegation alleging that her mental health issues prevented her from safely
meeting Evan F.‟s needs. No allegations concerning Greg F. were adjudicated at that
time. The court declared Evan F. to be described by section 300, subdivision (b).
The adjudication hearing on the allegations pertaining to Greg F. occurred in
December 2011. By that time, only two allegations were before the court: the section
300, subdivisions (a) and (b) allegations concerning “altercations over the care and
custody of the child,” including the June incident. The court found that Evan F. was a
child described by section 300, subdivision (a). The court dismissed the subdivision (b)
count in the interest of justice.
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D. Subsequent Petitions, Adjudication, and Disposition
In January 2012, DCFS filed a subsequent petition pursuant to section 342 in
which it reasserted the sexual abuse allegations that had previously been dismissed
without prejudice; this abuse was alleged as a basis for jurisdiction under section 300,
subdivisions (b) and (d). DCFS filed a first amended subsequent petition in April 2012 in
which it alleged two further bases for taking jurisdiction under section 300, subdivision
(b): Greg F.‟s alleged abduction of Evan F. and Greg F.‟s “numerous mental and
emotional problems,” including “impu[l]sive, erratic and reckless behavior.”
The juvenile court held a hearing in July and August 2012 that concerned
disposition with respect to Helen D. and adjudication of the four pending allegations
concerning Greg F. under section 300, subdivisions (b) and (d). After hearing testimony
from the alleged victim of sexual abuse by Greg F., the court struck the two sexual abuse
allegations under subdivisions (b) and (d) because it concluded that the evidence could
not support them.
The court then proceeded on the remaining two allegations under section 300,
subdivision (b). After receiving evidence, the court concluded that Evan F. had not been
abducted and struck that allegation; but it found true as amended the allegation under
section 342 that Greg F.‟s demonstrated numerous mental and emotional problems,
including, but not limited to, impulsive, erratic, and reckless behavior, brought Evan F.
within the jurisdiction of the juvenile court under section 300, subdivision (b). The court
declared Evan F. a dependent child.
At disposition, Greg F. did not request that Evan F. be placed with him, only that
he have unmonitored visitation; or, in the alternative, that any monitored visits occur at a
reasonable location. The court found by clear and convincing evidence that return of
Evan F. to his parents would create a substantial risk of danger to his physical or
emotional well-being and that no reasonable means existed to protect him without
removal from his parents‟ custody. Helen D. was given unmonitored visitation for
Evan F., including overnights in the home of Evan F.‟s caregivers; she was also ordered
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to continue all her services and psychiatric treatment. The court ordered a psychological
evaluation of Greg F. and monitored visitation. Greg F. appeals.
DISCUSSION
I. Sufficiency of the Evidence Pertaining to Jurisdiction
The juvenile court sustained allegations concerning Evan F. under section 300,
subdivision (b) due to Helen D.‟s mental health problems, and under section 300,
subdivisions (a) and (b) due to Greg F.‟s conduct. Greg F. argues on appeal that there
was not sufficient evidence to support the court‟s findings under section 300,
subdivisions (a) and (b) based on his conduct. DCFS argues that the sufficiency of the
evidence to support these two findings is nonjusticiable because even if the court‟s
findings on the counts with respect to Greg F. were not supported by substantial
evidence, the juvenile court would nonetheless maintain jurisdiction over Evan F.
because of the unchallenged finding under section 300, subdivision (b) pertaining to
Helen D. (In re I.A. (2011) 201 Cal.App.4th 1484, 1491-1492.)
Greg F. responds that even when the juvenile court would nonetheless maintain
dependency jurisdiction over a child, reviewing courts reach the merits of challenges to
jurisdictional findings when those findings could be prejudicial to the appellant. (See,
e.g., In re Drake M. (2012) 211 Cal.App.4th 754, 763.) He contends that he has been
prejudiced by the court‟s findings because “the jurisdictional finding that Greg engaged
in domestic violence with the mother and had mental health issues was the basis for its
subsequent order refusing to place Evan with Greg. As such, and contrary to
respondent‟s argument that Greg has presented no evidence to show how he was
prejudiced[,] having the court refuse his request for custody of his son was clearly
prejudicial to Greg.”
We have reviewed the transcript of the adjudication and disposition hearing and
find no indication that Greg F. requested custody of Evan F. but was refused. Even when
the court was considering jurisdiction, Greg F.‟s counsel made clear that he was trying
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only to obtain visitation for Greg F. Counsel asked the court to “dismiss [the] (b)(3)
allegation [the emotional problems allegation] so that we can work out some sort of
reasonable visitation plan for the father.” Later in the hearing, when the court turned to
disposition, the court asked the parties for their views on removing Evan F. from both
parents but allowing Helen D. to live in the house of Evan F.‟s caregivers. Counsel for
DCFS and Evan F.‟s counsel were amenable to that idea. Greg F.‟s counsel said, “Father
would join with minor‟s counsel and County Counsel,” and he only requested
unmonitored visitation or monitored visitation in a reasonable location, as well as visits
for Evan F.‟s half-sibling.
Despite Greg F.‟s failure to establish actual prejudice at disposition, because
jurisdictional orders may be prejudicial in current or future dependency proceedings, we
exercise our discretion to review the jurisdictional findings as to Greg F. (In re
Drake M., supra, 211 Cal.App.4th at p. 763.) We review the findings for substantial
evidence. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Substantial evidence is
evidence that is reasonable, credible, and of solid value. (In re Yvonne W. (2008) 165
Cal.App.4th 1394, 1401.) Under this standard of review, we examine the whole record in
a light most favorable to the findings and conclusions of the juvenile court and defer to
the lower court on issues of credibility of the evidence and witnesses. (In re Savannah
M. (2005) 131 Cal.App.4th 1387, 1393; In re Tania S. (1992) 5 Cal.App.4th 728, 733.)
We determine only whether there is any substantial evidence, contradicted or
uncontradicted, that supports the juvenile court‟s order, resolving all conflicts in support
of the determination and indulging all legitimate inferences to uphold the lower court‟s
ruling. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
The record contains substantial evidence to support the juvenile court‟s finding
under section 300, subdivision (a). The record includes evidence that Greg F. went into a
rage while holding Evan F. in June 2011, when Helen D. would not agree to his plan for
custody of Evan F. Greg F. would not permit Helen D. to hold a now-crying Evan F.; he
began making accusations and acting aggressively toward her and followed her around
the apartment. He stood over Helen D., berated her, and seized her electronic devices.
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The altercation became physical when Helen D. reached for Evan F. or her phone; as a
result, Helen D. was afraid and scratched. A security guard overheard the altercation and
witnessed its conclusion; he attempted to intervene to keep Greg F. from taking Evan F.
away. This evidence was sufficient for the juvenile court to conclude that the parents had
engaged in altercations over the care and custody of Evan F., and that on one occasion in
June 2011, a physical altercation resulted when Helen D. attempted to grab him from
Greg F. after Greg F. threatened to remove the child from her custody.
Greg F., however, identifies five pieces of evidence that were also before the
juvenile court to support his claim that there was insufficient evidence to support the
court‟s finding. First, Greg F. denied ever being violent with Helen D. and believed she
had scratched herself to make it appear he was violent. Second, the police detective who
met with a psychotic Helen D. in the hospital and investigated the incident in which
Helen D. threw Evan F. from the balcony told DCFS in August 2011 that she questioned
whether Helen D. had been psychotic and believed that she fabricated her allegation of
domestic abuse in order to assert control over the family situation; she also related a
number of observations of Helen D. during her psychotic break. Third, while Helen D.
was under psychiatric hospitalization she denied that Greg F. had “laid a hand” on her.
Fourth, in an August 2011 report, DCFS noted that it was not known whether there was
domestic violence between Greg F. and Helen D. because Helen D. had provided
conflicting statements while she was psychotic and the early stages of an increasingly
acrimonious child custody conflict. The social worker wrote that it was “uncertain”
whether Greg F. engaged in domestic violence: While Greg F. and Helen D. had an
unhealthy relationship, she thought “the dynamics of domestic violence which include a
pattern of power and control and a cycle of violence do not appear to be present.” Fifth,
Greg F. asserts that no criminal charges were filed against him as result of the June 2011
incident because Helen D. recanted what happened.
Greg F.‟s denial of abuse, his explanation for the absence of criminal proceedings,
the suspicions of a detective, and the uncertainty of a social worker are, interpreted most
broadly, items of evidence that could have supported a conclusion contrary to the
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conclusion the juvenile court reached. With respect to Helen D.‟s statements, Helen D.
did deny that Greg F. had ever laid a hand on her on July 11, 2011, in an interview
conducted while she was floridly psychotic and “presented as somewhat disoriented,
anxious, confused, with little affect.” Even as she told the DCFS social worker that
Greg F. had never laid a hand on her, she also said that he scared her. The social worker
reported, “When asked why she would be afraid of father if he has never been physical
with her, mother stated[,] „I‟m the type of person that needs to understand, to know things
in advance.‟ When asked for clarification, mother just stared at [the social worker].”
While this evidence tended to cast some doubt on Helen D.‟s account of violence, the fact
that she said that Greg F. had not laid a hand on her while in the midst of a psychotic
episode, particularly in the context of her expression of fear of Greg F. and her
incoherence in response to an attempt to reconcile her statements, does not preclude the
court from crediting the detailed declaration that Helen D. signed before her
hospitalization. Viewing the record most favorably to the juvenile court‟s order, if there
is substantial evidence to support the order, we must uphold the order even if other
evidence supports a contrary conclusion. (In re Megan S. (2002) 104 Cal.App.4th 247,
251.)
Greg F.‟s final argument about the insufficiency of the evidence to support the
juvenile court‟s findings under section 300, subdivision (a) is as follows: “Most
important, there was no evidence Evan was ever harmed as a result of any alleged
altercations between the parents.” Section 300, subdivision (a) provides for jurisdiction
over a child when the child “has suffered, or there is a substantial risk that the child will
suffer, serious physical harm inflicted nonaccidentally upon the child by the child‟s
parent or guardian.” As section 300, subdivision (a) encompasses both situations in
which serious physical harm has been inflicted and situations in which the child is
exposed to a substantial risk of serious physical harm, Greg F.‟s observation that Evan
had not been harmed by the altercations between his parents does not establish any error
in finding true the allegation made under this provision.
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Accordingly, we conclude that substantial evidence supports the court‟s findings
concerning the conduct of Greg F. under section 300, subdivision (a). Having determined
that the juvenile court properly sustained one jurisdictional allegation relating to Greg F.,
we need not consider his challenge to the sufficiency of the evidence to support the other
finding pertaining to him. (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045 [single basis
for jurisdiction is sufficient to uphold juvenile court‟s order]; In re Jonathan B. (1992) 5
Cal.App.4th 873, 875 [where one jurisdictional finding is supported by substantial
evidence, appellate court need not consider sufficiency of evidence to support other
findings].)
II. Removal Issues
Greg F. claims that the juvenile court erred at disposition when it removed custody
of Evan F. from both parents pursuant to section 361, subdivision (c)(1), because at the
time Evan F. was detained, he resided with Helen D. and not with Greg F. Instead,
Greg F. contends that the court was required to proceed under section 361.2 and to make
a finding that placement with Greg F. would have been detrimental to Evan F. in order to
deny him custody.
Section 361.2, subdivision (a) provides, “When a court orders removal of a child
pursuant to Section 361, the court shall first 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.” This provision does
not impact the court‟s dispositional orders. Greg F. did not claim at disposition to have
been a noncustodial parent, and the record reflects that Evan F. resided with both parents
at the time the earliest event arose that brought Evan F. within the provisions of section
300: the June 2011 physical altercation between Greg F. and Helen D. Moreover, as
discussed above, Greg F. has not demonstrated that he requested custody of Evan F. at
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disposition, and in the absence of a request for custody the court had no obligation to
place Evan F. with Greg F. (In re A.A. (2012) 203 Cal.App.4th 597, 605 [“It is the
noncustodial parent‟s request for custody that triggers application of section 361.2,
subdivision (a); where the noncustodial parent makes no such request, the statute is not
applicable”].) Finally, Greg F. has not demonstrated that he objected to the juvenile
court‟s alleged noncompliance with section 361.2 in the juvenile court, nor did we locate
in our review of the record any such objection. Objections to noncompliance with
section 361.2 are forfeited if not raised in the juvenile court. (Id. at p. 606; In re
Sabrina H. (2007) 149 Cal.App.4th 1403, 1419.) Greg F. has not established any error at
disposition.
DISPOSITION
The judgment is affirmed.
ZELON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
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