In re Evan F.
Filed 9/23/13 In re Evan F. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
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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 Juvenile Court Law.
B243861
(Los Angeles
County
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
GREG F.,
Defendant and Appellant.
Super. Ct.
No. CK88926)
APPEAL from a judgment of the Superior Court of
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
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.â€
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.â€
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.â€
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.’â€
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.
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
June incident declared that he had heard Helen D. “repeatedly requesting the
man to return her telephone, give her her baby, and to leave. 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
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 events had clearly resolved and
were no longer endorsed by the patient.â€
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
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.â€
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 Code
(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 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.
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.â€
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 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.â€
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 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.,
p. 763.) We review the findings for
substantial evidence. (
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. (
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.
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 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. (
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.â€
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.
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];
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 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 applicableâ€].) 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.
to the Welfare and Institutions Code.
