In re A.F.
Filed 8/7/13 In re A.F. CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re A.F.,
a Person Coming Under the Juvenile Court Law.
B243058
(Los Angeles County
Super. Ct. No. CK91573)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff,
Respondent and
Cross-Appellant,
v.
S.J.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
County, Robert L. Stevenson, Juvenile Court Referee. Reversed in part and affirmed in part.
Catherine C. Czar, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James
M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy
County Counsel, for Plaintiff, Respondent and Cross-Appellant.
introduction
Mother, S.J. (Mother), appeals from a
dependency court order declaring her minor son, A.F., a dependent of the court
under Welfare and Institutions Code section 300 (section 300), subdivision
(b). Mother contends there is no
substantial evidence that A.F. is at substantial risk of suffering serious
jurisdiction is appropriate under section 300, subdivision (b). We agree and reverse the order finding
that ground.
The
Family Services (DCFS) cross-appeals from the judgment, contending that the
dependency court erred in failing to find jurisdiction pursuant to section 300,
subdivision (c), based on severe emotional damage to A.F. Because the evidence below with respect to
emotional abuse was contradictory, we affirm the order dismissing the allegation
under section 300, subdivision (c).
factual and procedural background
Procedural Background
A dependency petition was filed on January
26, 2012,
alleging that A.F., a boy born February 1999, came within the provisions of
subdivisions (b) and (c) of section 300.
Under section 300, subdivision (b),
the petition alleged that on prior occasions, A.F. demonstrated homicidal
ideation against Mother and his grandmother, M.J. (Grandmother), resulting in
his hospitalization in a psychiatric
facility. The petition further alleges that Mother “failed to ensure the
child’s participation in necessary mental health treatment and that the child
complied with the child’s prescribed psychotropic medication regime,†and that
this medical neglect endangered his physical health and safety and placed him
“at risk of physical harm, damage, danger and medical neglect.â€
Under section 300, subdivision (c),
the petition alleged that Mother and Grandmother emotionally abused A.F. on an
ongoing basis by calling him demeaning and derogatory names and questioning his
sexual orientation, and by cutting his hair against his will while he was
sleeping. The petition alleged that the
child exhibited homicidal ideation against Mother and Grandmother resulting in
his hospitalization. The petition
alleged that the ongoing emotional abuse by Mother and her failure to protect
A.F. from abuse by Grandmother, places him at substantial risk of suffering
serious emotional damage as evidenced by severe anxiety, depression,
withdrawal, and aggressive behavior towards himself or others.
The court found a prima facie case
existed for detaining A.F. and for finding that he was a person described by
subdivisions (b) and (c) of section 300.
A.F. was released to Mother’s custody, and the court ordered a mental
health assessment for him and family maintenance services for him and Mother.
At the adjudication and disposition
hearing, the court found that A.F. has severe mental health issues, and that
Mother has not timely or adequately addressed these issues or ensured that A.F.
received the services he needed. The
court further concluded that Grandmother “creates quite a toxic environmentâ€
for A.F. The court sustained the
allegation under section 300, subdivision (b), but dismissed the allegation
under subdivision (c) on the ground that DCFS had not satisfied its
burden.
Mother appealed from the
jurisdictional/dispositional order finding jurisdiction under section 300,
subdivision (b), and DCFS cross-appealed, challenging the dependency court’s
dismissal of the allegation under section 300, subdivision (c).
Factual Background
1.
A.F. was the subject of nine referrals
to DCFS between July 2006 and November 2011 for
by Mother and Grandmother, who lived with the family. Besides the November 2011 report that gave
rise to the dependency petition on which the instant appeal is based, all the
prior allegations were deemed unfounded or inconclusive except one September
18, 2009 report of physical abuse by Grandmother. On that occasion, A.F. alleged that
Grandmother had hit him with a stick that morning and reported that she would
sometimes slap his face or hit him with coat hangers and other objects. Grandmother admitted hitting A.F. in the
past, and A.F.’s younger sister confirmed that her brother got hit with a
hanger. During the 2009 investigation,
A.F. admitted to grabbing a knife on one occasion, but stated he did not want
to hurt anyone, and just wanted attention.
Grandmother later stated that she believes A.F. brandished the knife
while under some sort of spell or hoax placed on him by the neighbors.
The family agreed to a Voluntary
Family Maintenance plan in place from September 2009 to November 2010, but DCFS
did not begin working with the family until March 2010, after another incident
in February 2010 when A.F. was hospitalized after stating that he wanted to
kill Grandmother because she sold his videogame system. Two days earlier, he had threatened to put
Mother in a wheelchair. At that time, he
had been suspended from school twice and engaged in disruptive behavior and
displayed poor impulse control at school.
A mandated reporter stated that the school had repeatedly referred A.F.
for counseling and Mother failed to follow through, negated everything, and
stated A.F. was fine.
A.F. admitted saying he was going to
kill Grandmother but insisted he did not really mean it. He denied feeling depressed. A.F. was diagnosed with Disruptive Behavior
Disorder Not Otherwise Specified and Impulse Control Disorder, Not Otherwise
Specified. He was directed to follow up
with mental health services and was prescribed Clonidine for hyperactivity and
poor impulse control, and Abilify for mood swings, irritability, aggression,
hostility, and paranoid grandiose ideations.
His prognosis was listed as fair to good with treatment, but poor without
treatment. During the first five months,
A.F. was cooperative with treatment, but during August and October 2010 he
refused therapy and medication and was verbally aggressive towards
Grandmother. He was referred to Full
Service Partnership services (FSP), but it is unknown whether he participated
in these services. Mother was referred
for counseling and parenting classes, but she refused to participate with FSP
or any other services.
When interviewed about the February
2010 incident on February 21, 2012, A.F. stated that he did not like taking
the medication prescribed for him because it made him sleepy. He said the doctor told Mother that he did
not need it anymore. Mother also stated
that the medication made him too drowsy and that the psychiatrist told her he
could stop. She also reported that the
psychiatrist told her that A.F. does not have mental health problems, but just
does not like to follow rules.
2. November
2011 Referral and Ensuing Investigation
A mandatory reporter alleged on
November 1, 2011 that Grandmother and A.F.’s stepfather, G.N. (Stepfather),
were emotionally abusing A.F., and Grandmother was physically abusing him. Grandmother reportedly hit A.F. with clothes
hangers and called him “gay, crazy, and retarded.†A DCFS caseworker added allegations of
emotional abuse and general neglect by Mother.
An emergency caseworker visited the
family’s apartment on November 3, 2011 and found it clean, but she noted a
large, six-foot shrine to a saint in the living room area containing beer cans,
candles, and idols. Mother, Grandmother,
and Stepfather all denied the allegations of abuse and denied calling A.F.
derogatory names. Mother said that when
A.F. does not listen to her, she threatens to call law enforcement to report
his misconduct in the home, and at times has called the police to have them
speak to her son. Mother stated that she
and her family have always been falsely accused of mistreating the children,
and she and Grandmother stated they were tired of having social workers in
their home. Mother explained that A.F.
would be receiving counseling in school for his school behaviors. She refused all other services mentioned by
the caseworker and would not let A.F. be medically examined, but indicated that
A.F. had just received a physical examination on October 27,
2011 and the
physician said he was healthy.
A.F. denied current physical or
emotional abuse, but stated that Grandmother used to hit him with sandals,
belts, and hangers and called him “gay, crazy, and retarded.†His younger sibling Y.G. denied any abuse of
A.F.
When the caseworker returned to the
home to interview Stepfather, Grandmother opened the door and said the
caseworker had no business returning there.
Mother said the visit was unnecessary as they knew who the reporting
party was and would be handling all matters with them. Stepfather denied any abuse of the children
and said no one in the home uses inappropriate language. When the caseworker tried to speak to the
children, Grandmother yelled at her, told her they did not have time to talk
about false allegations, and told her to leave the home. When the caseworker left, Grandmother slammed
the door.
The caseworker spoke to Sylvia
Navarro, the psychiatric social worker at A.F.’s middle school, who stated she
had known A.F. and his family for a couple of years. She explained that A.F. had longstanding
behavioral issues, including being disrespectful to teachers and acting out in
class. She had never seen any marks or
bruises on A.F., but knew there was name-calling in the home. A.F. had reported that Mother and Grandmother
said the dog was better-behaved than him, and Mother threatened that A.F. would
go to jail if he did not behave. Mother
had asked Ms. Navarro to tell A.F. that if he does not behave, he is going to
jail. Mother had a history of coming to
the office to seek help for her son, but she never followed through with the
recommendations given to her and would not accept the therapeutic services
offered to A.F. She also invited Mother
to participate in a parenting program, but Mother attended only one
session. Mother subsequently denied that
Ms. Navarro had referred her to a parenting class.
On January 18, 2012, the caseworker
interviewed A.F. in private at his school.
He explained that the name-calling had started again, and that
Grandmother called him “gay†because he was letting his hair grow out. This made him angry and he would leave the
home with his skateboard to avoid problems.
He alleged that Grandmother and Mother had cut his hair while he was
sleeping. He later corrected the story
and said Grandmother, who reportedly practices Santeria, had put a sticky spray
in his hair as part of her witchcraft.
As a result, he had to get his hair fixed at the barbershop, where
Grandmother took the razor from the barber and buzzed all his hair off much
shorter than he wanted.) He also said
that he often argues with Grandmother because she cares for “her saints†more
than him; for instance, she would not let him play electric guitar at home or
go outside because this would disturb the saints. A.F. denied any current thoughts of wanting
to hurt himself or others.
In a February 21, 2012 interview, A.F.
again stated that Grandmother called him gay, and said he must be “doing
favors†for a friend who gave him money to buy junk food at the store. These comments made A.F. “really mad.†Also, Mother and Grandmother would tell him
that his father, who lived in Mexico, was gay, which upset A.F. He again denied any current suicidal or
homicidal thoughts. He stated that two
months earlier he had gotten in a fight at school with a “really bigâ€
eighth-grader, which made Mother and Grandmother “scared†because they realize
he had gotten much stronger.
On February 21, 2012, Mother indicated
her belief that A.F. needed treatment due to his ongoing behavioral issues, but
she thought A.F.’s main problem was that he wanted to rebel and do whatever he
wants. She had scheduled a psychiatric
appointment for the following month. (On
March 6, 2012, DCFS confirmed that A.F. was scheduled to be seen for a
psychological evaluation.) Grandmother
stated her opinion that A.F. needs help and should be on medication. She denied cutting A.F.’s hair. A.F.’s younger sister said that A.F. would
get mad and curse at Mother and Grandmother, that he hated them, and he had
once told her he wanted to “break their heads.â€
She stated that everyone treated A.F. well and did not yell at him. Stepfather also said the family does not call
him derogatory names. He said no one can
control A.F., who yells frequently and gets violent; he had hit Mother and
Grandmother a few times. Although
Stepfather thought A.F. was “mostly a good kid†and was not presently a danger
to anyone in the home, he worried that as A.F. gets older he would get even
more out of control. Stepfather wanted
A.F. to get help so that it did not “get to the point where he does something
worse.â€
A July 23, 2012 Last Minute
Information report indicated that DCFS had received two more referrals, dated
April 25, 2012 and May 22, 2012, alleging abuse of A.F. An allegation of emotional abuse by Mother
that was the subject of the first referral was deemed substantiated, but the
other allegations were deemed unfounded.
The Last Minute Information also
stated that according to Mother, A.F. had missed some mental health
appointments in March and April 2012 because he refused to go and Mother felt
physically threatened by him. However,
A.F. had received school-based therapy services in June 2012 until those
services ended because A.F. began FSP services. The FSP team recommended that A.F. have a
mental health assessment, family therapy, and parenting classes for Mother and
Grandmother. A.F. was reportedly in the
process of receiving a psychiatric assessment and Mother stated she was
scheduled to begin parenting classes soon.
Mother had been “somewhat cooperativeâ€
in allowing A.F. to receive medical attention and counseling services but had
not been fully cooperative with DCFS. On
multiple occasions, she failed to show up for scheduled appointments to discuss
issues in the case. On one occasion, the
DCFS dependency investigator called Mother to confirm she was going to show up
for a scheduled appointment, and Grandmother told her that Mother was not at
home because she had gone to the hospital due to nerves and back pain. The investigator made an unannounced visit to
the home shortly thereafter and Mother answered the door, laughing, and said
she did not know why Grandmother had said she was not home. When the investigator asked why she was not
being cooperative and making her children available to the investigator, Mother
said, “ I don’t care. I don’t care. You can talk to my attorney if you want
because I don’t care. I was told that it
was up to me if I want [A.F.] to receive services and if I don’t feel like it,
I don’t have to make him available; none of that was ordered.â€
A.F. indicated that Mother and
Grandmother were no longer hitting him because he had learned to hit back, but
they still constantly verbally abused him.
Grandmother would call him “retarded†and “useless.†A.F. said he wanted both Mother and
Grandmother to receive parenting counseling and to leave him alone. “I’m behaving now and I listen, but they
still treat me the same way. It’s just
verbal abuse. Sometimes when I’m really
mad, I don’t know what to do and I feel like these four corners come at me and
it gets smaller and smaller and I feel like I’m going to erupt. I don’t want to hurt anybody, but I don’t
know what to do. I end up yelling into
my pillow and punch the pillows because I’m so mad. I want them to stop embarrassing me in
public. They scold me in public and in
front of my friends too. I just want
them to get some help!â€
On one occasion in July 2012, Mother
told DCFS she no longer wanted to care for A.F. as he continued to misbehave
and she would consider giving him up for adoption or sending him to a foster
home. She then said she does not want to
send A.F. away permanently, but she would like the court to consider sending
him to a boot camp where he could learn to behave better.
discussion
In order to assert jurisdiction over a
minor, the juvenile court must find that he or she falls within one or more of
the categories specified in section 300.
(In re Veronica G. (2007) 157
Cal.App.4th 179, 185.) DCFS bears the
burden of proving by a preponderance of the evidence that the minor comes under
the juvenile court’s jurisdiction. (
“On appeal from an order making jurisdictional findings, we must uphold
the court’s findings unless, after reviewing the entire record and resolving
all conflicts in favor of the respondent and drawing all reasonable inferences
in support of the judgment, we determine there is no substantial evidence to
support the findings. [Citation.] Substantial evidence is evidence that is
reasonable, credible, and of solid value.â€
(Ibid.) “A mere ‘scintilla’ of evidence is not
enough. [Citation.]†(In re
B.T. (2011) 193 Cal.App.4th 685, 691.)
Any inferences we draw must be reasonable and logical; “‘inferences that
are the result of mere speculation or conjecture cannot support a finding
[citations].’ [Citation.]†(Ibid.)
Section
300, subdivision (b)
Dependency jurisdiction may be
asserted under section 300, subdivision (b) where DCFS establishes that “[t]he
child has suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or inability of
his or her parent or guardian to adequately supervise or protect the child, or
the willful or negligent failure of the child’s parent or guardian to
adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left, or by the willful or negligent failure of
the parent or guardian to provide the child with adequate food, clothing,
shelter, or medical treatment, or by the inability of the parent or guardian to
provide regular care for the child due to the parent’s or guardian’s mental
illness, developmental disability, or substance abuse.†(§ 300, subd. (b).)
A jurisdictional finding under section
300, subdivision (b), thus requires:
(1) neglectful conduct by the parent in one of the specified forms;
(2) causation; and (3) serious physical
harm or illness to the child, or a substantial risk of such harm or
illness. (In re James R. (2009) 176 Cal.App.4th 129, 135.) “While evidence of past conduct may be
probative of current conditions, the question under section 300 is whether
circumstances at the time of the hearing subject the minor to the defined risk
of harm.†(In re Rocco M. (1991) 1 Cal.App.4th 814, 824, italics
omitted.) “Thus previous acts of
neglect, standing alone, do not establish a substantial risk of harm; there
must be some reason beyond mere speculation to believe they will reoccur.†(In re
Ricardo L. (2003) 109 Cal.App.4th 552, 565.)
DCFS contends that jurisdiction is
justified under section 300, subdivision (b) because “[t]his is a case of a
child in severe emotional pain, and Mother had not followed through with
appropriate treatment.†However, under
section 300, subdivision (b), emotional harm
is not sufficient to assert jurisdiction.
(In re Daisy H. (2011) 192
Cal.App.4th 713, 718.)
Accordingly, we focus solely on
whether DCFS has proffered substantial evidence that “at the time of the
jurisdictional hearing the child is at substantial risk of serious physical harm in the future.†(In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1396, italics added.) Despite the evidence that Grandmother hit A.F.
was hit with clothes hangers, belts, shoes, and other objects in the past, by
the time of the jurisdictional hearing, A.F. consistently denied any ongoing
physical abuse, because he claimed that Grandmother and Mother were scared now
that he had gotten stronger and had learned how to hit back. No evidence was presented of a substantial
risk of serious physical harm at the hands of Grandmother.
Nor did DCFS present substantial
evidence that A.F. was at risk of serious physical harm based on Mother’s failure
to ensure that he complied with a mental health regimen of therapy and
medication. The record contains no
evidence that A.F. has ever had thoughts of harming himself or that his mental
health problems endangered his physical health.
He always denied feelings of depression.
He was hospitalized for homicidal ideations directed at Mother and
Grandmother, but such aggression towards others does not form a basis for
jurisdiction under section 300, subdivision (b).
We conclude that there is no substantial evidence that
A.F. is at substantial risk of suffering serious physical harm such that
dependency jurisdiction is appropriate under section 300, subdivision (b). We therefore reverse the order finding
dependency jurisdiction over A.F. on that basis.
Section
300, subdivision (c)
DCFS challenges the dependency court’s
determination that DCFS did not satisfy its burden to prove the allegation
under section 300, subdivision (c), based on emotional harm suffered by
A.F. Because the issue on appeal turns on
whether DCFS met its burden of proof, the question for this court is whether
the evidence compels a finding in favor of DCFS as a matter of law, that is,
whether DCFS’s evidence was “‘uncontradicted and unimpeached’†and “‘of such a
character and weight as to leave no room for a judicial determination that it
was insufficient to support a finding.’â€
(In re I.W. (2009) 180
Cal.App.4th 1517, 1528.)
Section 300, subdivision (c) provides
for dependency court jurisdiction when “[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 or who has no parent or guardian capable of providing
appropriate care.†“The statute thus
sanctions intervention by the dependency system in two situations: (1) when parental action or inaction causes
the emotional harm, i.e., when parental fault can be shown; and (2) when the
child is suffering serious emotional damage due to no parental fault or
neglect, but the parent or parents are unable themselves to provide adequate
mental health treatment.†(
549, 557; see In re Nicholas B.
(2001) 88 Cal.App.4th 1126, 1136, fn. 11.)
In its petition seeking dependency
jurisdiction under section 300, subdivision (c), DCFS alleged only that A.F.
suffered emotional damage as a result of the conduct of his parent, and did not
allege that he had no parent capable of providing appropriate mental health
care.
established the following three elements:
“(1) serious emotional damage as evidenced by severe anxiety,
depression, withdrawal or untoward aggressive behavior or a substantial risk of
severe emotional harm if jurisdiction is not assumed; (2) offending parental
conduct; and (3) causation.†(
1373, 1379; see In re Alexander K., supra,
14 Cal.App.4th at p. 557.)
The dependency court found that A.F.
was suffering from “severe mental health issues†and had been “crying
out.†The record demonstrates that he
was hospitalized in 2010 for homicidal ideation against Mother and Grandmother,
and on several other occasions had threatened to harm them. Uncontradicted evidence demonstrates
that A.F. continued to feel rage towards them as of the time of the
jurisdictional hearing, as A.F. told DCFS in July 2012, “I feel like I’m
going to erupt. I don’t want to hurt anybody,
but I don’t know what to do. I end up
yelling into my pillow and punch the pillows because I’m so mad.†The record suggests that his aggressive behavior towards Mother and Grandmother continued
in 2012 and that Stepfather worried he would become more dangerous as he got
older. No evidence contradicted the
evidence proffered by DCFS showing that A.F. suffered serious emotional damage,
manifested by his aggressive behavior towards his family members.
However, the more problematic issue
here is whether Mother’s alleged emotional abuse of A.F., and her failure to
protect A.F. from Grandmother’s emotional abuse, caused A.F.’s emotional
problems. There is ample evidence in the
record suggesting that Mother and Grandmother emotionally abused him. Had the dependency court sustained the
allegation under section 300, subdivision (c), we would have had little
difficulty concluding that DCFS had proffered substantial evidence of emotional
abuse. However, as discussed above,
because the court dismissed the petition, and DCFS bore the burden of proof,
the question on appeal is whether the evidence of emotional abuse by Mother was
“‘uncontradicted and unimpeached.’†(
1528.) As Mother points out, there was
contradictory evidence in the record with respect to whether she and
Grandmother called A.F. derogatory names and abused him emotionally, with
Mother, Grandmother, Stepfather, and A.F.’s little sister denying such
mistreatment. Given the conflicting
evidence, we cannot find that the only reasonable conclusion was that Mother’s
treatment of A.F. or her failure to protect him was the cause of his emotional
and psychological issues. Therefore, we
affirm the order dismissing the allegation under section 300, subdivision (c).
The order dismissing the
allegation under section 300, subdivision (c) is affirmed. The jurisdiction and disposition orders
finding jurisdiction under section 300, subdivision (b) are reversed and the
matter is remanded with directions that the juvenile court vacate those orders
and issue new orders: (1) finding
that A.F. is not a dependent child within its jurisdiction under section 300;
and (2) dismissing the section 300 petition as to A.F.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
name="_ftn1" title="">[1] The petition also alleged that A.F.’s
younger sister, Y.G., was a child described by section 300, but ultimately such
allegations were dismissed and Y.G. is not a party to this appeal. A.F.’s father, who lives in Mexico, is also
not a party to this appeal.
name="_ftn2" title="">[2] On appeal, DCFS argues that the
dependency court should have sustained the allegation under section 300,
subdivision (c) because it found that Mother had failed to provide appropriate
mental health treatment. However, DCFS
does not acknowledge the limited grounds on which it sought jurisdiction under
subdivision (c). Due process considerations
restrain us from sustaining dependency jurisdiction on statutory grounds that
were not alleged before the dependency court.
