In re Erica E

Filed 2/16/06 In re Erica E. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from the orders of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

Shawn E. (Father) appeals the orders declaring his children Erica E. and Alexander E. (Alex) dependents of the juvenile court under Welfare and Institutions Code^[1] section 300, subdivision (c) and removing them from his custody under section 361, subdivision (c)(3). He contends the jurisdiction and disposition findings and orders are not supported by substantial evidence. In addition, Father argues the court abused its discretion when it denied his request to dismiss the petitions and order informal supervision under section 360, subdivision (b). The children's mother Ruth S. (Mother) does not appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1998, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions on behalf of Erica, then three years old, and Alex, age two. In January 1999, the Agency filed amended petitions alleging the parents' violent confrontations exposed the children to a substantial risk of harm. (In re Erica E. (Jan. 20, 2000, D033211) [nonpub. opn.]; In re Erica E. (Aug. 29, 2000, D035037) [nonpub. opn.].) In April 1999, the court took jurisdiction under section 300, subdivisions (b) and (j).

In August 2001, after providing extensive services directed at modifying the parents' mutually acrimonious conduct, the court terminated dependency jurisdiction. The court gave Mother and Father joint legal and physical custody of the children. Mother provided the children's primary residence. Father had liberal visitation. (In re Erica E. (Apr. 9, 2002, D038596) [nonpub. opn.].)

Family court proceedings were initiated sometime in 2002. In the summer of 2004, Mother asked Father to assume temporary custody of the children. Father and Mother cooperated for a few months. The children relaxed and did well. However, when Mother wanted the children returned and the family court did not grant her request, the conflict resumed. The family court gave Father full custody of the children and limited Mother to supervised visitation. Mother regained unsupervised visitation in December 2004.

After the original dependency case was dismissed, the Agency received approximately 22 referrals on the children, most of which were unfounded, duplicative, or inconclusive. In January 2005, the Agency received a referral alleging Father injured Alex by hitting him in the head with a bat. Alex required 12 stitches. The Agency's investigation revealed Alex sustained the injuries when he was in a van with Mother when she braked suddenly. Alex hit his head. He was not wearing a seatbelt.

In March 2005, Father was late returning from work. The children were locked out of the house. They called Mother who instructed them to call the police. When the police arrived, the children accused Father of serious physical abuse. Conversely, they reported Mother pressured them to allege abuse by Father. Erica and Alex stated they wanted to return to Mother.

The Agency detained the children and filed petitions under section 300, subdivision (c), alleging the children were suffering serious emotional damage as a result of the conduct of the parents in that the children were emotionally traumatized as a result of the on-going conflict between the parents. Warren O'Meara, Ph.D., performed psychological evaluations on the children. Alex exhibited sociopathic tendencies and Erica showed signs of a histrionic personality disorder. Alex was subsequently diagnosed with posttraumatic stress disorder. O'Meara opined Erica's psychological difficulties stemmed directly from the protracted custody dispute.

The situation was complicated by the parents' own mental health conditions. Mother's condition was diagnosed as personality disorder, depressive disorder and anxiety disorder. Her insight and judgment were "significantly impaired." She had antisocial tendencies that posed a potential safety risk to others. Father's condition was diagnosed as obsessive compulsive disorder with poor insight. He was highly anxious. Despite years of therapy and some improvement, whenever a stressful incident occurred, Father was unable to appropriately respond to Mother.

The court adjudicated the children dependents of the court and removed them from the custody of both parents. Erica and Alex were placed in a residential treatment facility. Parental visitation was limited and highly supervised. The court ordered reunification services for each parent.

DISCUSSION

Jurisdiction

Father challenges the sufficiency of the evidence supporting the jurisdictional orders. Father argues the children were doing well and did not display severe emotional problems in his care. Father also contends the children did not exhibit the type of emotional abuse described by section 300, subdivision (c), while they were in his custody.

We review the trial court's findings for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The evidence must be reasonable in nature, credible, and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Under section 300, subdivision (c), the juvenile court can intervene when a child exhibits serious emotional damage. This provision can apply in a situation where the child is suffering serious emotional damage through no fault of the parent, but the parent is unable to provide adequate mental health treatment. (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.) It is equally applicable where the parent allegedly causes or greatly contributes to the child's emotional damage. In such a case, the petitioner must prove three elements: (1) the offending parental conduct, (2) causation, and (3) serious emotional harm, or a substantial risk of emotional harm, as evidenced by severe anxiety, depression, withdrawal, or aggressive behavior. (Ibid.)

Here, the Agency alleged under section 300, subdivision (c) that Erica and Alex were suffering, or at substantial risk of suffering, serious emotional damage as a result of the on-going conflict between the parents. Erica was alleged to be withdrawn and depressed due to psychological trauma. The Agency alleged Alex had an emotional disorder with symptoms of severe anxiety, self-injurious behaviors, including pulling out his hair and compulsive lying.

The trial court found that all the evidence supported a finding the children were suffering serious emotional damage. There is no evidence to the contrary. Erica, at age nine, was diagnosed with parent-child relational problem, adjustment disorder with anxious and depressed mood and depressive disorder. Erica's accusations against Father were so outlandish mental health professionals recommended she be evaluated for delusion. Alex, age eight, was also diagnosed with parent-child relational problem, attention deficit disorder, and adjustment disorder with anxious mood. Alex was physically acting out by pulling his hair, hitting himself with his fist and banging his head on tables and walls. The children exhibited behaviors consistent with posttraumatic stress disorder.

The record before the juvenile court showed the parent's conflict was ongoing since 1999 with only very brief respite for the children. The children's apparent well-being in Father's care occurred during a period of time their parents were not fighting. The parents' overarching pattern is a lengthy history of mutual acrimony. Although Father tried his best to neutralize the situation, he was incapable of shielding the children from Mother's behaviors and not fully capable of controlling his response to her. All experts agreed the conflict between the parents was the cause of the children's emotional damage.

Substantial evidence supports the court's findings the children were suffering serious emotional damage caused by parental conduct. The court's findings and orders under section 300, subdivision (c) were necessary and appropriate.

Voluntary Services

Father contends the court should have dismissed the dependency petitions and offered him and the children voluntary services. He blames Mother for manipulating the case into dependency court in order to remove the children from his custody. Father argues he could meet the children's emotional needs by continuing therapy and seeking a family court order limiting Mother to supervised visitation.

Under section 360, subdivision (b), if the court finds that the child is a person described by section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together. The court may place the child and the child's parent under Agency supervision for a period of six months, with a possible six-month extension. (§ 360, subd. (d); see §§ 301, subd. (a), 16506, 16507.3.)

The juvenile court has broad discretion to decide what means will best serve the child's interest and to fashion a dispositional order accordingly. (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) Its determination will not be reversed absent a clear abuse of that discretion. (In re Eric B. (1987) 189 Cal.App.3d 996, 1005.)

Father asserts the "family law court is better suited to handling issues relating to custody and visitation." (In re Brison C. (2000) 81 Cal.App.4th 1373, 1382.) Unfortunately, this case does not present issues of custody and visitation which, even though difficult or complex, properly belong in the family court. The children's family court therapist, Susan Richardson, testified this was an "extreme" case. The children's family law attorney also characterized the parental dispute as "extreme" and stated the family court did not have the resources to assist the family. In the approximately three years he represented Erica and Alex in family court, there was a total of only two to three months in which there had been no major incidents.

The court found the case "too complicated" and the children's needs too "serious" to dismiss the petitions and make orders under section 360, subdivision (b), as Father requested. The case had been in family court. That court had imposed alternative custody and visitation arrangements. The children received outpatient therapeutic services through the family court for more than two years. Their therapist was now recommending out-of-home placement in a therapeutic environment. During the brief times the parents were cooperating or too busy to fight, the children relaxed and did well. At all other times, notwithstanding any court order, the conflict escalated to the children's detriment.

The court did not abuse its discretion when it denied Father's request to dismiss the petitions and return the children to his custody under informal supervision. The court properly determined the children's mental health conditions were serious and required the intervention and resources of the dependency court.

Disposition

Father challenges the sufficiency of the evidence to support the court's dispositional orders. He asserts there were reasonable means to protect Erica's and Alex's emotional health without removing them from his custody.

At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) In order to remove a child from the custody of a parent or guardian, the court must apply one of the applicable standards found in section 361, subdivision (c). (In re Heather A. (1996) 52 Cal.App.4th 183, 193; see Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077.) Here, the applicable standard is found in section 361, subdivision (c)(3): "The minor is suffering severe emotional damage . . . and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian."

If the child is to be removed from the home, the burden of proof is substantially greater than at the jurisdictional hearing. (Compare § 361, subd. (c) with § 355, subd. (a); In re Henry V. (2004) 119 Cal.App.4th 522, 528.) "Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Despite the heightened burden of proof required for removal at disposition, "we employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.)

Although Doctor O'Meara opined the more recent emotional abuse was inflicted by Mother, and Richardson had recommended to the family court the children have no contact with Mother, they and other experts agreed the dynamic between the parents was the cause of the children's poor emotional health. O'Meara stated the children were being "destroyed" by the parents' custody battle. Each parent was responsible.

Richardson believed without proper treatment, the children, especially Erica, were at risk of developing potentially untreatable sociopathic personality disorders. Richardson recommended the children be placed in a residential treatment facility with no contact with either parent until therapeutically advisable. O'Meara recommended separating Alex from his parents as a therapeutic intervention. In order for him to heal, the parental games needed to stop. Erica, too, needed time away from her parents to heal emotional wounds. Without appropriate intervention, the children were at risk of hurting themselves or others.

Substantial evidence supports the court's finding there were no reasonable means to protect Erica's and Alex's emotional health without removing them from parental custody. There is no error.

DISPOSITION

The orders are affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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^[1] All statutory references are to the Welfare and Institutions Code.