G.
Filed 8/9/12 In re Omar G.
CA2/1
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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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re OMAR G., a Person Coming
Under the Juvenile Court Law.
B236558
(Los Angeles
County
Super. Ct.
No. CK62968)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MANUEL V.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of
County. Arturo Garcia,
Referee. Affirmed.
Robert R. Walmsley, under
appointment by the Court of Appeal, for Defendant and Appellant.
John Krattli, Acting County Counsel,
James M. Owens, Assistant County Counsel, and Emery El Habiby, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________
Manuel V. (Father) appeals from the
August 2, 2011 jurisdictional and dispositional orders of the juvenile court
adjudging Omar G. a dependent of the court pursuant to Welfare and Institutions
Code section 300, subdivision (b) (failure to protect).
considered witness statements in the social studies because they were not
admissible under section 355, subdivision (c)(1) and that his
because the Los Angeles County Department of Children and Family Services
(DCFS) did not call witnesses. Father
also contends that the court erred in denying Father’s request to take judicial
notice of the family law file and prior dependency file and erred in denying
Father’s request to call paternal grandmother at the dispositional hearing. Further, Father contends that there was
insufficient evidence to support the jurisdictional finding and that the
court’s dispositional orders should be reversed. Angelica G. (Mother) is not a party to this
appeal. We decline DCFS’s invitation to
dismiss the appeal as moot. We disagree
with Father’s contentions and affirm the orders of the court.
On February 18, 2011, DCFS filed a petition pursuant to section 300, subdivision
(a) (serious physical harm); subdivision (b) (failure to protect); and
subdivision (c) (serious emotional damage) on behalf of Omar G., born in
2007. DCFS filed a first amended
petition on March 24, 2011, alleging pursuant to section 300, subdivision
(a) that Father and Mother have a history of engaging in violent altercations,
and pursuant to section 300, subdivision (c) that Father emotionally abused
Omar G. by engaging in an ongoing family child custody dispute with Mother,
including physically assaulting and stalking Mother and making numerous
unsubstantiated child abuse referrals against Mother for the past three
years. At adjudication, the court
dismissed the allegations of section 300, subdivisions (a) and (c) but
sustained the petition pursuant to section 300, subdivision (b) that “[o]n a
prior occasion,” Father grabbed Mother and physically restrained her and made
multiple threats to harm Mother and Omar G.’s sibling; and that Father “has
mental and emotional problems including stalking and harassing [Mother]. Father has exhibited stalking tendencies,
erratic, unstable and irrational behavior.
Further [Father] has a history of suicidal ideations. [Father] has failed to receive treatment for
said mental and emotional problems.”
The events leading up to the filing of the petition were
as follows. Father and Mother have an
extensive history with DCFS, beginning in 2006 with sustained petitions
regarding caretaker absence and general neglect of Omar G.’s two half siblings
by Mother. A sustained petition in 2008
alleged that on November 2, 2007, Father grabbed and
physically restrained Mother and made multiple threats to harm Mother and Omar
G.’s half sister. Father and Mother also
had a history of domestic violence.
The
current petition was filed when DCFS received a referral in January 2011 that
Omar G. had been injured in a car accident while with maternal grandmother;
Omar G. is dirty, has bad body odor, and his hair is matted; the reporting
party could not visit Omar G. because of a restraining order; Mother has a
history of smoking marijuana; and Mother leaves Omar G. with maternal
grandparents, who “are felons.” On January 18, 2011, Mother told DCFS that
Father stalks her at the college she attends and she has a restraining order
against him. She had served Father that
day with papers for an ex parte hearing to modify an existing family law
order. Mother denied that Omar G., who
was wearing a brown polo shirt, khaki pants and a sweater, had been in a car
accident and pointed out that he was clean.
School personnel reported that Omar G. was a “sweet, happy child” who
“comes to school clean.”
A
March 10, 2010 university police report
indicated that Father showed up to Mother’s classroom and stated, “‘I knew I
would find you here, you better take care of my son.’” On January 22,
2011,
DCFS received a referral regarding Father stalking Mother at her college around
October or November 2010.
Mother
and Father reported to DCFS each other’s alleged drug use, abuse of Omar G.,
and harassing behavior. Father reported to DCFS that Omar G.’s face
and nose are dirty, his hair is uncombed, and Mother had dropped him off at
Father’s house dirty and without shoes.
He reported that Omar G. does not have his own bed and that maternal
grandfather was a felon. Mother stated
that she met Father in 2003 and separated from him in 2007 after he became
violent and controlling and pushed her around.
In 2008, Father threatened to burn the house down, kill her, and “‘take
[our] baby.’” Mother stated that in
addition to stalking her at her college where she is enrolled in a master’s
program in marriage and family therapy, Father had begun to harass her
professor. Mother stated that Father
calls her constantly from blocked numbers, texts her, and writes her
letters. She reported that Father holds
a black belt in martial arts and carries a large knife at all times. She is concerned about Father’s anger issues
and Omar G.’s safety during visits with Father because of Father’s explosive
temper. She also stated that after
visits with Father, Omar G. wets his bed, is fearful, has nightmares, and
cannot get to sleep until 1:00 or 2:00
a.m.
Investigation
revealed that in 1997 Father had been arrested for inflicting corporal injury
on a spouse/cohabitant. In 2003, Father
had been convicted of a charge of driving under the influence. The 2007 grabbing incident gave rise
to a domestic violence action that lasted from February 2008 to September
2009. Omar G. developed post-traumatic
stress disorder as a result of witnessing the domestic violence between Mother
and Father. In 2008, Father had been convicted of making
a terrorist threat to a social worker and a juvenile court judge and violating
a restraining order. He was sentenced to
five years’ probation. Mother had an
active restraining order against Father, which was issued on November 16, 2007, and is valid until midnight on November 17, 2012. The
restraining order requires Father to stay at least 100 yards away from Mother
as well as family members and friends, Mother’s home, Mother’s vehicle, and
Omar G.’s school. A second restraining
order issued on January 25, 2008, expired on January 25, 2011. Father denied stalking Mother and stated he
had been at her college to use the computer center.
DCFS
reported that Father harassed Mother from 2008 by sending her letters, texts,
and leaving voice-mail messages. Mother
showed DCFS a letter written by Father to Mother on February 6, 2011,
which violated the restraining order. He
also made unannounced visits to her home and school and in October 2010 broke
into her home. DCFS noted that on
January 25, 2011, Omar G. began crying when Father stepped into the police
station where Mother had brought Omar G. for an exchange. When Father picked up Omar G., he called out
for Mother. Omar G.’s pediatrician
reported to DCFS that Omar G. is up to date on immunizations, there are no
medical concerns, and Mother is meeting Omar G.’s needs. Maternal grandparents had no criminal
history.
On
January 20, 2011, Michele Linden, a professor at Mother’s college, wrote a
statement that she was “personally aware of harassment and physical
altercations” by Father. She stated that
she had to contact campus police on several occasions to watch over her
classroom and that Father has “threatened [Mother] and pushed and threatened
another female student who tried to intervene.”
On February 24, 2011, Professor Linden wrote a statement that after
she made her first statement, Father harassed her by calling her, calling
campus police to complain about her, and writing a letter to academic affairs
stating a number of untruths about the first statement.
Los
Angeles County Sheriff’s Department Detective Rick Walters told DCFS, “‘I have
tried to get [Father] into the office but he won’t come because he knows I’ll
arrest him. He definitely has mental
health problems and is mentally unstable.
He broke into [Mother’s] home. We
have an eyewitness who saw him enter and exit the home.’”
Connie
White-Betz, Ph.D., told DCFS that she has been Mother’s therapist from 2004 and
that based on Mother’s statements, Father is mentally unstable and has
demonstrated aggressive and unpredictable behavior. Dr. Betz opined that Mother had no reason to
lie. Dr. Betz stated that although she
could not make a diagnosis for an individual she had never met, she believed
that based on Mother’s reports, Father demonstrates sociopathic behaviors, a
narcissistic personality disorder, and mentally unstable characteristics. She noted that he had tried to commit suicide
by hanging himself in front of Mother.
She stated that Omar G. is being used as a pawn and that Father
constantly threatens Mother. She stated
that she is concerned for Mother’s safety and that she wanted to write a letter
to the director of DCFS because she felt that not enough was being done to
protect Mother and Omar G.
At
the adjudication hearing on August 2, 2011, when the juvenile court asked
if there was any objection to receiving DCFS’s exhibits 1 through 7 into
evidence, Father stated, “None. So long
as they’re received with their attachments.”
The court then stated, “Okay.
Silence by everyone else means no objection. So I am receiving the trial exhibit list into
evidence and all the documents on that list will be received into evidence with
attachments.” DCFS stated that it had no
witnesses, but the social worker was available for cross-examination.
Father
then argued that he wanted his written section “355 objections ruled upon. We had objected to the admission of certain
evidence.” Pertinent to this appeal,
Father objected to the admission of statements of Dr. Betz, Detective Walters,
and Professor Linden unless they were available for cross-examination. In response to DCFS’s argument that
admissible under section 355, Father argued that Professor Linden’s statements were not admissible because she was
not Omar G.’s teacher and Dr. Betz’s
statements should not be admitted as part of the social study because she was
not Omar G.’s treating physician. The
court denied Father’s “motion” to exclude evidence. Father called his probation officer, Jasper
Jones, as a witness, and the court sustained an objection to “the exhibit”
pertaining to Jones. Jones testified
that Father was on probation for a crime involving domestic violence and had
completed a parenting class and a domestic violence program. Father also had voluntarily entered into a
drug rehabilitation program. Father called
paternal grandmother, who testified that she had witnessed Mother and Father
yell at each other and Mother pushing Father.
She denied knowledge that Father had threatened Mother and Omar G.’s
sibling or acted erratically. She denied
knowledge that Father had mental or emotional “illnesses.”
In
response to the juvenile court’s query, DCFS, Mother, and Omar G. stated they
had no witnesses to call. On DCFS’s
motion, the court dismissed a section 300, subdivision (b) allegation and the
section 300, subdivision (c) allegation. The court also dismissed the section
300, subdivision (a) allegation. Father
then argued he had not violated any restraining order because the
previous restraining order had expired on January 25, 2011. After hearing further argument from Mother,
DCFS, and Omar G., the court sustained two amended section 300, subdivision (b)
allegations that “[o]n a prior occasion,” Father grabbed Mother and physically
restrained her and made multiple threats to harm Mother and Omar G.’s sibling;
and that Father “has mental and emotional problems including stalking and
harassing [Mother]. Father has exhibited
stalking tendencies, erratic, unstable and irrational behavior. Further [Father] has a history of suicidal
ideations. [Father] has failed to
receive treatment for said mental and emotional problems.” The court adjudged
Omar G. a dependent of the court. When
the court asked whether the parties wanted to proceed to disposition, Father
responded that he would “like to go forward today. I don’t have my witness [paternal
grandmother] here.” The court stated,
“Well, she’s already said it all.
There’s nothing else for her to say.
You all crossed in so many areas here that you didn’t ask to cross into,
but you already did it. So I’m not going
to allow the testimony.” After hearing
argument, the court terminated jurisdiction and made a family law order for
Mother to have full custody with monitored visits for Father. Father appealed.
DISCUSSION
A. The juvenile court did not err in admitting
Dr. Betz’s, Detective Walters’s, and Professor Linden’s statements, and
Father’s due process rights were not infringed upon because DCFS did not call
witnesses
Father contends that the juvenile court improperly
considered Dr. Betz’s,
Detective Walters’s, and Professor Linden’s statements because they were not
admissible under section 355, subdivision (c)(1) and that his due process rights were
infringed upon because DCFS did not call witnesses. We disagree.
Social
studies constitute competent evidence. (
382.) Section 355,
subdivision (a) provides that “[a]ny legally admissible evidence that is
relevant to the circumstances or acts that are alleged to bring the minor
within the jurisdiction of the juvenile court is admissible and may be received
in evidence.” Section 355, subdivision
(b) provides that “[a] social study . . . , and hearsay evidence
contained in it, is admissible and constitutes competent evidence upon which a
finding of jurisdiction pursuant to Section 300 may be based, to the extent
allowed by subdivisions (c) and (d).” A “‘social
study’” means any written report furnished to the juvenile court and to the
parties by DCFS. (§ 355, subd.
(b)(1).) “The preparer of the social study shall be
made available for cross-examination upon a timely request by any party” and
can be deemed available for cross-examination if “the preparer is on telephone
standby and can be present in court within a reasonable time of the request.” (§ 355, subd. (b)(2).)
Section 355,
subdivision (c)(1) provides that “[i]f any party to the jurisdictional hearing
raises a timely objection to the admission of specific hearsay evidence
contained in a social study, the specific hearsay evidence shall not be
sufficient by itself to support a
jurisdictional finding or any ultimate fact upon which a jurisdictional finding
is based, unless the petitioner establishes one or more of the following
exceptions[.]’” (§ 355, subd. (c)(1),
italics added.) One of the exceptions is
that “[t]he hearsay evidence would be admissible in any civil or criminal
proceeding under any statutory or decisional exception to the prohibition
against hearsay.” (§ 355, subd.
(c)(1)(A).) Another is that “[t]he hearsay declarant is a
peace officer . . . a health practitioner . . . a social
worker . . . or a teacher . . . .” (§ 355, subd. (c)(1)(C).) Section 355, subdivision (c)(1)(C) also
states, “For the purpose of this subdivision, evidence in a declaration is
admissible only to the extent that it would otherwise be admissible under this
section or if the declarant were present and testifying in court.”
On appeal, Father argues that the juvenile court erred in
admitting Dr. Betz’s, Detective Walters’s, and Professor Linden’s statements
because, Father claims, they lacked foundation and were hearsay evidence not
“otherwise” admissible in a civil trial within the
meaning of the exceptions of section 355, subdivision (c)(1)(A) and (C). As previously stated, section 355, subdivision (c)(1) provides that upon timely
objection to specific hearsay evidence contained in the social study, the
specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding unless an exception
set forth in section 355, subdivision (c)(1)(A) through (D) is established.
But the statements of Dr. Betz, Detective Walters, and Professor Linden
were corroborated by Mother, by Omar G.’s teachers, by university police, and
by Omar G.’s pediatrician. Mother stated
that Father had been violent toward her and had harassed her with phone calls,
text messages, and letters. She stated
that Father had a violent temper and had threatened to kill her and burn the
house down. She stated that when Omar G.
returned from visits he was fearful, wet the bed, had nightmares, and was
unable to sleep at his regular time. She
also stated that Father stalked her and harassed her professor at the
college. University police reported that
Father had shown up at Mother’s classroom and told her that she had better take
care of Omar G. Omar G.’s teachers said
that he was a happy, sweet child who was clean when he came to school. Omar G.’s pediatrician stated that Omar G.
has no medical concerns and that Mother meets his needs.
Additionally, the court considered the
testimony of Jones, who testified that Father had been on probation for a crime
involving domestic violence, and paternal grandmother, who testified that she
had observed Mother and Father yell at each other. Therefore, we need not
determine the applicability of the exceptions to section 355, subdivision (c)(1), which
“limit the extent to which such social study hearsay evidence can be relied on
Lucero L. (2000) 22 Cal.4th 1227, 1243, italics added.)
We are not
persuaded by Father’s further argument that his due process rights were
infringed upon because DCFS did not call the “hearsay declarants” it had listed
on its witness list. “[D]ue process
does not require that the county, rather than the parent, call all witnesses
mentioned in the social study.” (
And placing the burden on the parent to subpoena witnesses quoted in the
social study does not pose a risk of deprivation of the parent’s custodial
rights. (Id. at p. 384.) The parent may cross-examine adverse witnesses and
“employ the court’s subpoena power to compel the presence of witnesses
mentioned in a social study (§ 341).” (In re
Malinda S., at p. 384.) The
state has a legitimate interest in resolving the child’s status quickly. (Ibid.) Therefore, Father had the burden to call
witnesses he wished to cross-examine, but failed to do so. He cannot now complain.
We
conclude that the juvenile court did not err in admitting Dr. Betz’s, Detective
Walters’s, and Professor Linden’s statements contained in the social study
report and that Father’s due process
rights were not infringed upon because DCFS did not call witnesses to testify.
B. The juvenile court did not err in denying
Father’s request to take judicial notice of the family law file and prior dependency
file and did not err in denying Father’s request to call paternal grandmother
at the dispositional hearing
Father also contends that the
juvenile court erred in refusing his request to take judicial notice of the
family law file and prior dependency file.
He also argues that the court abused its discretion in refusing his
request to examine paternal grandmother at the dispositional hearing. We disagree with his contentions.
Father argues that the juvenile
court erred in failing to take judicial notice of the family law file because
“DCFS . . . argued for having [Omar G.] declared a dependent of the
Court based on Father running to family court.”
But in support of his argument, Father cites solely to a section 300,
subdivision (c) allegation that had been dismissed, that Father had
“‘emotionally abused [Omar G.] by engaging in an ongoing Family Child Custody
dispute with [Mother].’” Accordingly,
because the allegation was dismissed, the evidence was not relevant and
Father’s argument must fail.
Father also contends that the
juvenile court’s refusal to allow him to examine paternal grandmother at
adjudication regarding his relationship with his son and refusal to allow him
to call her at disposition was error because he was denied an opportunity to
present relevant evidence. We
disagree. We conclude the court did not
abuse its discretion in excluding further testimony from paternal
grandmother—who had minutes before testified at the jurisdictional hearing—on
the basis that there was no new testimony to be offered. (Maricela
C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146–1147 [“While a parent
in a juvenile dependency proceeding has a due process right to meaningful
hearing with the opportunity to present evidence,” “[t]he state’s strong interest
in prompt and efficient trials permits the nonarbitrary exclusion of evidence,”
“such as when the presentation of the evidence will ‘necessitate undue
consumption of time.’”].)
Accordingly, we conclude that the juvenile court did not
err in denying Father’s request to take judicial notice of the family law file
and prior dependency file and did not err in denying Father’s request to call
paternal grandmother at the dispositional hearing.
C. There was sufficient evidence to support
jurisdiction under section 300, subdivision (b)
Father contends that the evidence
was insufficient to support jurisdiction under section 300, subdivision
(b). We disagree.
The juvenile court’s jurisdictional finding that the
minor is a person described in section 300 must be supported by a preponderance
of the evidence. (§ 355; Cal. Rules
of Court, rule 5.684(f).) “‘“When the sufficiency of the evidence to
support a finding or order is challenged on appeal, the reviewing court must
determine if there is any substantial evidence, that is, evidence which is
reasonable, credible, and of solid value to support the conclusion of the trier
of fact. [Citation.] In making this determination, all conflicts
[in the evidence and in reasonable inferences from the evidence] are to be
resolved in favor of the prevailing party, and issues of
and credibility are questions for the trier of fact. [Citation.]”’
[Citation.] While substantial
evidence may consist of inferences, such inferences must rest on the evidence;
inferences that are the result of speculation or conjecture cannot support a
finding. [Citation.]” (In re
Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259.)
Section 300, subdivision (b) provides a basis for
juvenile court jurisdiction if “[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 . . . .”
“A jurisdictional finding under section 300,
subdivision (b) 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.” [Citation.]’
[Citations.] The third element
‘effectively requires a showing that at the time of the jurisdictional hearing
the child is at substantial risk of serious physical harm in the future (e.g.,
evidence showing a substantial risk that past physical harm will
reoccur).’ [Citation.]” (In re
James R. (2009) 176 Cal.App.4th 129, 135.)
DCFS has the burden of showing specifically how the minor has been or
will be harmed. (Id. at p. 136.)
The juvenile court sustained the
allegations of section 300, subdivision (b) that Father had grabbed Mother and
physically restrained her on a prior occasion and made multiple threats to harm
Mother and Omar G.’s sibling. Father
contends that the grabbing incident occurred in November 2007 and that
subsequently he has attended parenting classes and
Mother, including the texts and letters, have been peaceful attempts to
co-parent. While it is true that the
particular incident where Father grabbed and restrained Mother occurred in
2007, that incident gave rise to a domestic violence action that lasted from
February 2008 to September 2009. Omar G.
developed post-traumatic stress disorder as a result of witnessing the domestic
violence between Mother and Father. And
the evidence shows that from 2008, Father has continued to engage in hostile
and acrimonious acts against Mother, threatening to kill her and burn her house
down in 2008, breaking into her home in 2010, stalking her at her college in
2010 and subsequently harassing her professor, and continuing to sending her
harassing texts, emails, and letters. We
conclude the evidence supports the court’s implied finding that Father’s
actions harm or pose a substantial risk of harm to Omar G.
Accordingly, we conclude there was sufficient evidence to
support jurisdiction pursuant to section 300, subdivision (b). In light of our determination that the juvenile court did
not err in admitting statements in the social studies, or in denying Father’s
request to take judicial notice of the family law file and prior dependency
file, or in denying Father’s request to call paternal grandmother at the
dispositional hearing, we need not address Father’s further argument that
cumulative errors require reversal of the jurisdictional and dispositional
orders.
The juvenile
court’s jurisdiction and disposition orders are affirmed. The Los Angeles County Department of Children
and Family Services’ “motion to dismiss portion of appeal” filed on February
15, 2012, is denied.
NOT TO BE
PUBLISHED.
MALLANO,
P. J.
We concur:
ROTHSCHILD,
J.
CHANEY, J.
and Institutions Code.
