In re Joseph S.
Filed 5/13/13 In re Joseph S. CA1/4
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
IN RE
JOSEPH S. et al., Persons Coming Under the Juvenile Court Law.
MARIN
COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
JOSE S.,
SR.,
Defendant and Appellant.
A135211
(Marin
County Super.
Ct.
Nos. JV25486A,
JV25487A, JV25488A)
The
juvenile court declared the four minor children of appellant Jose S., Sr. to be
dependent children on the sole ground that they were at risk of
§ 300, subd. (c).) They were
allowed to remain in the family home and offered
challenging the jurisdictional findings for three of the minors. He contends that those findings are flawed
because (1) Joseph’s petition did not allege the statutory basis on which the
juvenile court found jurisdiction, and (2) insufficient evidence supports the
finding that Jacqueline and Jasmine were at substantial risk of serious
emotional harm. We affirm the orders
entered on behalf of Jacqueline and Jasmine, but reverse Joseph’s order and
remand for further proceedings on his petition.
FACTS
title="">
Carolina
S.
and appellant Jose S., Sr. have four children.
Jose, Jr. was born in 1994 and Joseph was born in 1999. In 2001, daughter Jacqueline joined the
family, followed by Jasmine in 2005.
the home had prompted more than thirty referrals to child protection
authorities since 1995. Some of these
instances also involved the police.
Jose, Sr. had been arrested twice on domestic violence charges.
In
November 2011, Carolina was
arrested and charged with domestic violence after an incident with Jose, Sr.
that occurred in the presence of all four minors.
Services (department) was advised of the incident, although the minors were
not removed from the home.
In
December 2011, the department filed a petition alleging that all four minors
came within the jurisdiction of the juvenile court. The petition alleged that Carolina
and Jose, Sr. had failed to protect the four children. (§ 300, subd. (b).) It also alleged that three of the
minors—Jose, Jr., Jacqueline, and Jasmine—were at risk of serious emotional
damage. (§ 300, subd. (c).) The petition did not make any such
allegations about Joseph. The department
sought to have the minors remain in the home, supported by family maintenance
services focused on anger management,
domestic violence prevention, and therapy for the entire family.
More
specifically, the department reported that Jose, Jr. showed signs of
depression—loss of appetite, sleeping problems, social withdrawal, loss of
interest in school, and suicidal thoughts.
Jacqueline was anxious, finding it difficult to focus on school work or
to block out thoughts of her parents’ fighting while at play. She also reported a loss of appetite and
stated that she felt “really unsafe†at home.
The younger daughter Jasmine had her own anxiety symptoms—violent
nightmares that disrupted her sleep. All
of these children had witnessed domestic
violence in the home.
The
department was unable to interview Joseph, because Jose, Sr. denied the social
worker any access to the minor.
name="_ftnref6" title="">[6] When confronted with these effects of domestic
violence on his other three children, Jose, Sr. was angry, paranoid,
dismissive, and obstructionist. He was
willing to obtain therapy for Jose, Jr., but insisted that no one else in his
family needed it.
At
the detention hearing, the department
claimed that all four minors were at risk of emotional harm without family
maintenance services. The parents were
investigating obtaining individual counseling for Jose, Jr. through their
health care provider. The juvenile court
ordered the parents to give the department access to Joseph. Jose, Sr. and Carolina
were granted family maintenance services and the children were allowed to
remain in their home. Both parents were
ordered to participate in services—perhaps including counseling—related to the
prevention of domestic violence.
In
advance of the jurisdiction hearing, the department filed several reports with
the juvenile court. In its original
report filed in late December 2011, it recounted some of the domestic violence
referrals received about this family and about the family of Jose, Sr., and his
first wife and child. Summaries of
interviews with Jose, Jr., Jacqueline, and Jasmine were consistent with the
allegations of the petition. Jose, Jr.’s
report was particularly troubling, as it recounted an attempted suicide after Carolina
was arrested. He and his parents had
begun therapy, according to his father.
When Joseph was interviewed, he denied that his parents yelled at each
other and reported that his father forbade him from talking to the social
worker because “he hates†the child protective service workers. Jacqueline told the social worker that her
parents scream at each other; according to the child, Carolina says that Jose,
Sr. may be crazy—a psycho. When Jose,
Sr. arrived in the midst of these interviews, he became angry with the social
worker and his children.
The
department also reported that since 2003, Jose, Sr. had been arrested twice for
spousal battery and once for spousal rape in incidents involving Carolina. (See Pen. Code, §§ 262,
subd. (a)(1), 273.5, subd. (a).)
The report included a more general assertion that Jose, Sr. had an
extensive criminal history including charges of drug offenses, theft, burglary,
and false imprisonment. He disputed
those general allegations. Jose, Sr. was
unable to work due to a disability, prompting stress and depression about his
family’s financial instability. He
admitted that these pressures played a role in fights with Carolina. His wife told the department that while she
was in jail, Jose, Sr. had disposed of all her clothing. She was concerned that he might be using
cocaine, which might account for his erratic behavior. A police officer conducting a welfare check
independently observed that Jose, Sr. did seem paranoid.
The
department recommended that the juvenile court take jurisdiction over the four
minors pursuant to subdivisions (b) and (c) of section 300 and that they be
given family maintenance services while remaining in their home. The January
4, 2012, jurisdiction hearing was continued for a
attaching police reports relating to Jose, Sr.’s, recent instances of domestic
violence. It asked the juvenile court to
take judicial notice of these reports.
On February 16, 2012,
Jose, Sr. filed a hearsay objection to part of the December 2011 department
report referencing events involving his first wife and child, and
unsubstantiated aspects of his criminal history.
On
February 21, 2012, the
department produced a second addendum, updating the information provided in the
December 2011 and January 2012 reports.
This addendum included summaries of events occurring since the December
2011 report. More recently, Jose, Sr.
had displayed erratic and delusional behavior, telling his daughters that Carolina
drugged them while they slept so they would torture him.
night, a neighbor poked his children with wires sent through the ceiling. Carolina
again expressed her concern that Jose, Sr. was using drugs.
The
department recounted Joseph’s anger at his father about the false accusations
that his mother drugged her children.
The minor reported that, at one point, Jose, Sr. planned to have the
children undergo blood tests to find out if they had been drugged. Later, he abandoned that plan. Joseph also opined that his father was using
drugs. Asked how safe he felt at home,
Joseph placed himself as a 6 on a scale of 10.
Carolina
reported that all four minors had been assessed by a therapist who concluded
that the daughters did not need therapy, but that her two sons did. However, she refused to allow the social
worker to speak with Joseph’s therapist.
Jose, Sr. opined that all his children were “doing great†and refused a
request to take a drug test. Neither
parent seemed concerned about the impact of Jose, Sr.’s, delusions and their ongoing
fighting on their children. The
department asked the juvenile court to consider the information recounted in
this report at the jurisdiction hearing.
At
the contested jurisdiction hearing on February 21, 2012, the juvenile court
excluded evidence of Jose, Sr.’s criminal history from 1985 to 1992.
addendum until the day of the hearing, the juvenile court did not consider the
addendum as evidence that day. Carolina
offered evidence of Joseph’s academic success.
The
social worker testified about her concern that fighting between Jose, Sr. and Carolina
was having a negative emotional effect on the minors. Jose, Jr., believed that everyone in the
family needed counseling, specifically pointing to Joseph’s anger issues as a
concern that needed to be addressed in therapy.
The father was unwilling to receive services through the department,
seeking instead to obtain counseling through his health care provider. The department recommended county-funded
counseling for all family members with therapists who met higher child welfare
requirements. The social worker opined
that Jose, Sr.’s health care provider did not offer therapy of the frequency or
duration needed to meet the family’s needs, based on her experience with its
therapeutic model.
The
contested hearing was continued until February
27, 2012. By this time, the
juvenile court considered the original report and both addendums from the
department. Joseph did not attend the
hearing, at his request. The social
worker testified that Jose, Sr. did not allow Carolina
to leave their home.
Jose,
Sr. also testified that, in his view, his children had no problems—that the
social worker was the real problem. His
children were not at risk and his family did not need any department services
to protect them. He had taken Joseph to
therapy with his private insurer. He
told the juvenile court that the children had been assessed and found not in
need of counseling, so he did not pursue therapy for them. Joseph was doing very well in school. Jose Jr. was having difficulty sleeping, so
his father was taking him the doctor to address this concern. All of his children were involved in football
or cheerleading. All had received some
tutoring at some point—educational assistance that Jose, Sr. had provided for
them at his expense. He refused to do a
self-assessment for alcohol or drug abuse.
At
the close of the jurisdiction hearing, the juvenile declared all four minors to
be dependent children on the basis of the subdivision (c) allegation of serious
emotional damage. It struck the
subdivision (b) failure to protect allegation on insufficiency of evidence
grounds.
title="">[10]
After
mediation in advance of the disposition hearing, Carolina
agreed with the department’s objectives, but Jose, Sr. did not. After the father’s contested disposition
hearing in April 2012, the juvenile court concluded that the father was not
amenable to services. It ordered that
the minors remain with their parents in the family home and that the department
provide family maintenance services.
Jose, Sr. was ordered to participate in anger management
classes and individual counseling, as well as to submit to random drug testing
for a period of time. Jose, Sr. appealed
all four dispositional orders, but in his briefs, he challenges only the
jurisdictional findings made on behalf of Joseph, Jacqueline, and Jasmine.
JOSEPH
Jose,
Sr. contends that as Joseph’s petition did not allege that this minor was at
risk of emotional harm—the sole statutory basis on which the juvenile court
based its jurisdictional order—that court had no authority to take jurisdiction
over Joseph. (§ 300, subd. (c).) The petition filed on Joseph’s behalf alleged
that jurisdiction existed based only on failure to protect grounds. (§ 300, subd. (b).) The juvenile court found insufficient
evidence to support that allegation, but took jurisdiction over Joseph based on
an allegation that was not made in the petition with regard to this minor—that
he was at risk of serious emotional harm.
A
parent in a juvenile dependency proceeding is entitled to due process. (In re
J. T. (1974) 40 Cal.App.3d 633, 637.)
Notice of allegations on which deprivation of custody may be premised is
required to comply with due process, so that the parents may respond to those
allegations. (In re Jeremy C. (1980) 109 Cal.App.3d 384, 397;
at p. 639.) In this matter before us, no
formal notice was given to Jose, Sr. that the juvenile court might take
jurisdiction over Joseph because of a risk of serious emotional harm.
Jose,
Sr. asks us to dismiss the underlying petition filed on Joseph’s behalf, but we
reject his proposed remedy for this due
process error. The department has
the authority to amend Joseph’s petition to allege serious emotional harm,
consistent with the evidence that developed after the petition was filed. (§ 348; see Code Civ. Proc., § 473.) We conclude that while the jurisdictional
order must be reversed, the case should be remanded to the juvenile court to
allow Joseph’s petition to be amended, and to allow the juvenile court to
determine anew whether the allegation in the amended petition is true. (See, e.g., In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) That determination will be made based on the
facts existing at the time of the new jurisdiction hearing. (See In
re Brison C. (2000) 81 Cal.App.4th 1373, 1379; In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
JACQUELINE AND JASMINE
Jose,
Sr. also challenges the sufficiency of evidence supporting the juvenile court’s
finding that Jacqueline and Jasmine were at substantial risk of serious
emotional harm.
title="">[14] (§ 300, subd. (c).) A child comes within the jurisdiction of the
juvenile court if he or she is suffering or is at substantial risk of suffering
serious emotional damage. This damage is
evidenced by severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward the self or others, as a result of parental conduct. (§ 300, subd. (c).) To prove that Jacqueline and Jasmine came
within this subdivision, the department was required to prove serious emotional
damage evidenced by qualities such as severe anxiety or depression. (In re
Brison C., supra, 81 Cal.App.4th at p. 1379; In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)
In
the juvenile court, the department must prove by a preponderance of evidence
that the minor who is the subject of a dependency petition comes within that
court’s jurisdiction. (
at p. 1379; In re Amy M. (1991) 232
Cal.App.3d 849, 859.) The statutory
grounds are narrow. (
at p. 1379.) On appeal, we review the
jurisdictional finding for substantial evidence, resolving all conflicts in the
evidence and reasonable inferences in support of that finding. The ultimate question is whether the juvenile
court’s finding was reasonable in light of the whole record. (In re
David M. (2005) 134 Cal.App.4th 822, 828; In re James C. (2002) 104 Cal.App.4th 470, 482.) On appeal, Jose, Sr. has the burden of
proving that the evidence was insufficient to support the juvenile court’s
finding. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Jose,
Sr. contends that there was no evidence that his daughters suffered from severe
anxiety or that this could result in serious
emotional damage. He relies heavily
on a case that one appellate court concluded showed little more than a
relatively happy child who had occasional nightmares and was caught in the
crossfire of his parents’ divorce. (See
at pp. 1379-1382.) Even if we found
that case to be persuasive,
name="_ftnref15" title="">[15]
we would find the facts about Jacqueline and Jasmine’s anxiety to be much more
serious.
Close to the time of the
hearing, Jose, Sr. told the girls that their mother was drugging them in their
sleep. They believed him. He told police that the girls reported to him
that a neighbor was poking wires at them through the ceiling while they
slept. These purported assaults cannot
have induced a sound night for either girl, particularly Jasmine who had
previously reported anxiety that prompted nightmares in which her parents
attacked each other with knives. She
feared that her dreams would come true.
(See In re A.J., supra, 197
Cal.App.4th at pp. 1104.) Jacqueline
reported that she did not feel safe at home.
There was evidence that Jose, Sr. had had a drug problem. He did not acknowledge the possibility that
his delusions and his ongoing disputes with Carolina had a negative effect on
his children. He refused to let the girls
receive counseling, despite Jacqueline’s express request for it. This evidence was sufficient to support a
finding that these two minors were suffering serious emotional harm at the time
of the jurisdictional finding.
Jacqueline
and Jasmine were also at risk of suffering serious emotional harm in the
future, based on the evidence that was before the juvenile court at the
jurisdiction hearing. (See
1104.) Jose, Sr. was delusional and
passed his delusions on to both girls.
(See id. at p. 1105.) He did not acknowledge the inappropriateness
of his conduct or express any willingness to change. (See id.
at p. 1106.) Construing the record
in support of the jurisdictional finding as we must, we find sufficient
evidence of severe anxiety to support the finding that Jacqueline and Jasmine
were at risk of serious emotional harm within the meaning of section 300
subdivision (c).
The
orders finding jurisdiction over Jacqueline and Jasmine are affirmed. The jurisdictional order entered on Joseph’s
behalf is reversed. His aspect of this
matter is remanded to the juvenile court to allow his petition to be amended
and to conduct a new jurisdiction hearing on the basis of an amended petition.
_________________________
REARDON,
J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
HUMES, J.
statutory references are to the Welfare and Institutions Code, unless otherwise
indicated.
name="_ftn2" title=""> [2]
Typically, a juvenile court disposition order constitutes a judgment and is a
proper means for reviewing the underlying finding of jurisdiction. (In re
Megan B. (1991) 235 Cal.App.3d 942, 950.)
