In re David W.

 

 

 

 

 

 

 

 

 

 

 

Filed 6/17/13  In re David W. CA2/7

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
SEVEN

 
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In re DAVID W., a Person Coming Under the Juvenile Court Law.	B243483      (Los Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   L.W.,               Defendant and Appellant.	Super. Ct. No. CK85636)

 

            APPEAL from orders of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Jacqueline
Lewis, Juvenile Court Referee.  Affirmed.

            Law Offices of Arthur J. LaCilento
and Arthur J. LaCilento, for Defendant and Appellant.

            John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Jeanette Cauble, Senior Deputy
County Counsel, for Plaintiff and Respondent.

            Marissa Coffey, under appointment by
the Court of Appeal, for Respondent David W. (minor).

_______________________

INTRODUCTION>

In February of
2011, the juvenile court declared five-year-old David W. a dependent pursuant
to Welfare and Institutions Code section 300 and ordered the parents to share
custody of the child.href="#_ftn1"
name="_ftnref1" title="">[1]  Approximately one year later, David’s
therapist reported that the parents’ ongoing, combative relationship had caused
the child severe emotional distress, ultimately culminating in a psychiatric
hospitalization.  Based on this new
information, the juvenile court ordered the child detained and the Los Angeles
County Department of Children and Family Services (DCFS) filed a section 342
petition; following a contested adjudication and disposition hearing, the court
sustained the petition and detained the child.

Father appeals the juvenile
court’s jurisdictional and disposition orders, arguing that: (1) the court’s
orders were not supported by substantial evidence; (2) the court exceeded its
authorities by ordering DCFS to file a section 342 petition; and (3) the
juvenile court violated the time limitations set forth in section 352,
subdivision (b).  We affirm the court’s
orders, concluding that although the juvenile court violated section 352,
father suffered no prejudice. 

FACTUAL AND PROCEDURAL BACKGROUND

>A.     >Initial
Section 300 Petition

>1.     
Summary
of the initial section 300 petition and detention

a.         Summary of initial
referral and DCFS investigation

L.W. (father) and J.F. (mother) are
the parents of David W., who was born in 2005. 
Mother was previously married to M.B., with whom she had a daughter,
V.F., who was born in 1996.

On November 15, 2010, DCFS received a referral alleging that
father placed David, then five, and V.F., then 14, in a dangerous situation
involving an automobile.  The report
indicated that, on November 9th, M.B. was inside his home gathering items to
load into mother’s pick-up truck.  David
and V.F. were both sitting in the vehicle, which was parked in the
driveway.  While M.B. was inside the
house, father entered the vehicle and turned on the engine.  Upon hearing the engine, M.B. ran outside and
jumped into the open bed of the truck. 
Father began to drive the vehicle down the street with M.B. banging on a
rear window, yelling at father to stop. 
Father eventually stopped the truck, “exchanged words with [M.B.]” and
then drove back to M.B.’s residence. 
After M.B. and V.F. exited the vehicle, father and David drove
away.  M.B. reported the incident to the
police.

            On November
30, DCFS interviewed mother, M.B., David and V.F. regarding the incident.  Mother reported that M.B. had called her
immediately after the incident and said that he thought father was trying to
kill him by throwing him off the back of the truck.  Mother further reported that V.F. was visibly
upset by the incident and that David was crying and complaining of abdominal
pain.  According to mother, neither child
had a seat belt on when the father began driving the vehicle. 

Mother told DCFS that her
relationship with father had been “on and off for about eight years” and had
“consisted of domestic violence in a physical, sexual, verbal and emotional
manner.”  Mother stated that during a
recent trip to Israel,
father had head-butted her twice in the forehead.  On prior occasions, he had allegedly forced
mother “to engage in sexual activity against her will” and threatened her life.


             During his interview with DCFS, M.B. stated
that he had feared for his life while on the back of the truck, explaining that
both children could see him “hanging from a bar” and that V.F. began to cry and
shake hysterically, which then caused David to become upset.  V.F. provided similar statements, informing
DCFS that she was sitting in the backseat of the vehicle when father opened the
driver side door, entered the truck and began driving away.  V.F. stated that she saw M.B. (her father)
holding onto the back of the vehicle, yelling at father to stop. V.F. feared
that father was trying to kill M.B. 
After traveling several blocks and making multiple turns, father stopped
the truck.  Shortly thereafter, V.F.
realized “what had happened” and became hysterical.  She reported that David was also upset and
crying.

            David
reported that he was sitting in the truck and “was really scared” because M.B.
was “screaming” from the “back.”  David
also reported that his father could be “really mean” and that, sometimes, he
was “scared” of father.  David explained
that, on one prior occasion, father and mother were pulling each of his hands
in separate directions and he thought, “‘I can’t be two people, I’m only
one.  I can’t go two places.  Almost like they were trying to split me in
half.’”

            On December 2, 2010, DCFS interviewed
father, who denied M.B.’s version of the incident.  Father alleged that he and the mother owned
the truck together, and that he had been trying to get it back for a long
period of time.  Father asserted that,
after entering the vehicle, he asked V.F. to get out, but she refused to do
so.  Father alleged he “pulled the car
out of the driveway into the alley way and drove approximately two or three
homes before realizing [M.B.] was in the back of the car.”  Father claimed that “because [M.B.] was so
upset he upset [V.F.] which then upset . . . David.”  Father also stated that he believed mother
had “coached” David on what to say about the incident.

            Father
denied ever having been violent with mother and claimed that she had been
violent with him.  He also reported that
mother had previously scratched his vehicle, broken into his home and been
charged with a DUI.  According to father,
mother was an alcoholic and employed as a “call girl” or “prostitute.”  When DCFS asked mother about these
allegations, she admitted that she had scratched father’s car “out of anger”
and had “trespassed” into his house to retrieve some personal belongings.  She also admitted that, in 2003, she was
found to be driving with a blood alcohol content of .08 and was charged with
“reckless driving.”  She denied being a
call girl or a prostitute. 

            DCFS also interviewed a neighbor of M.B. who was in her
house at the time of the incident.  The
witness stated that she heard a truck “screeching” around a turn, and then saw
the truck stopped in front of her house, with a man sitting in the driver’s
seat and two children in the passenger seats. 
A second man was yelling that he was going to call the police.

b.     
Summary
of DCFS’s section 300 petition and temporary detention hearing

            On December 6,
2010, DCFS filed a petition alleging that David fell within the
jurisdiction of the juvenile court pursuant to section 300, subdivisions (a)
and (b).  The petition included an
identical allegation under each subdivision asserting that father had placed
the child at risk during the driving incident and that the parents had both
engaged in “violent altercations in the child’s presence.” 

DCFS filed a
detention report in support of the petition containing a summary of its initial
investigation.  The report concluded that
David was “at substantial danger” of physical and emotional harm if left in the
parents’ custody and recommended that he be removed from their homes.  At the detention hearing, the court
found  there was prima facie evidence
that David was a “a person described by section 300 subdivisions (a) and (b)
and that continuance in either parent’s home would be contrary to the child’s
welfare.”  The court vested temporary
custody of David in DCFS and granted the parents reunification services and
monitored visits.

            2.         Jurisdictional
and disposition report 

            On December 20, 2010, DCFS filed a
jurisdictional and disposition report summarizing additional interviews that it
had conducted with David, V.F., father, mother, M.B. and an associate of
father.  Contrary to the statement made
in his initial interview, David told DCFS he was “not scared” during the
incident and that nobody was yelling. 
According to David, M.B. had been “flying on the car because he wanted
to borrow it but my dad said he couldn’t.” 
David also stated that he had never been physically disciplined by his
parents and had never seen them engage in any violent altercations.  

            V.F.
reported that father entered the car, smiled at David and then turned on the
engine.  While he was driving, V.F. could
clearly hear M.B. saying “stop the car.” 
Father, however, smiled and “giggled,” and started to drive faster,
while “turning and turning again.” 
During this time, the children were not wearing seat belts.  V.F. stated that she was “hysterical” during
the incident, but that David just had a “shocked expression.”    

            Father
denied that he had driven in a dangerous manner.  He claimed that he had only driven about 200
feet, without turning or “driv[ing] fast.” 
He also reported that the tires of the vehicle screeched because “there
was a screw in the tire and ‘the low pressure it creates a screech with a mild
turn because there is not enough air in the tire.’”  Father further reported that the engine was
on for less than 60 seconds and that “[t]he only chaos was because [M.B.] was
screaming on the truck.”  He alleged
neither of the children were afraid and denied that he had swerved the vehicle
or that he had been trying to eject M.B. from the bed of the truck.  He also alleged that David was wearing his
seatbelt, but could not recall whether V.F. was wearing her belt.  

            Father also
told DCFS that mother had a problem with alcohol that was detrimental to
David.  Father provided DCFS a
declaration in which he repeated his allegations that mother was a prostitute,
that she had broken into his home and that she had scratched his car.  He also submitted a letter from David’s private
school stating that mother had repeatedly brought the child to school
late.  Father submitted numerous
additional declarations attesting to his character and parenting skills.

            In her
interview with DCFS, mother stated that she had been married to M.B. between
1996 and 2001 and then met father in 2003. 
Mother lived in father’s apartment for five years and continued to
receive financial support from him. 
Mother alleged that during a recent trip to Israel, she found father
talking on the phone to another woman and became upset.  Mother left the hotel and, when she returned,
father pulled her hair, head-butted her twice and then pretended he was going
to hit her with his fist.  Mother stated
that father had never actually raped her, but had demanded to have sex with
her.  Father denied all of these
allegations.  

            M.B. told
DCFS that, after he jumped into the cab of the truck, the vehicle began
accelerating and turning sharply to the right and then to the left.  He stated that he was screaming and could see
both children in the car, who looked scared and were not wearing their
seatbelts.  When father stopped the car,
M.B. told him he was going to call the police. 
V.F. was crying and David appeared to be in shock.  M.B. also said he would have been ejected
from the rear of the vehicle if he had not grabbed onto a railing.  Father suggested that he and M.B. talk about
the incident over coffee.  M.B., however,
elected to call the police.

            Finally, an
associate who had traveled with father to retrieve the vehicle told DCFS that
he saw M.B. get into the back of the truck, then knock on a window, which
caused father to immediately stop.  The
associate alleged that he had not seen the vehicle suddenly start, stop or
swerve, but admitted that he had lost sight of the vehicle before it came to a
complete stop. 

            DCFS reported that David had been placed in a foster home
and recommended that the court declare him a dependent and provide
reunification services for both parents. 
At a December 22, 2010 hearing, David’s attorney requested that he
remain in the foster home, where he had been doing well.  The court ordered David to remain in the
foster home and continued the matter.

                        3.         The parents’ mediated agreement
pleading no contest to the petition          

On February 2, 2011, the parents
entered into a mediated agreement
pleading no contest to an amended section 300 petition that contained a single
allegation under subdivision (b):  “The
child’s parents have exposed the child to the risk of physical and emotional
harm by engaging in high conflict behavior on an on-going basis, including at
times in the child’s presence.  Such
conduct includes but is not limited to an incident in November 2010 when the
child’s father erratically drove a vehicle belonging to both parents while
David and another child were in the truck. 
David was not properly secured in appropriate safety restraints, and the
incident was frightening.  On a different
occasion, in the child’s presence the mother damaged the father’s vehicle by
intentionally scratching it with a key. 
The parents’ endangering and detrimental conduct places the child at
risk of physical and
emotional harm.”  

            Pursuant to the mediated agreement, the court ordered the
parents to share custody of David under a pre-negotiated, written
schedule.  The parents were also ordered
to complete parenting classes, participate in individual and conjoint “co-parenting”
counseling and ensure that David attend individual therapy.  Father was also ordered to complete an anger
management class and mother was ordered to participate in domestic violence
victims counseling.  The court set a
section 364 status hearing for August 10, 2011.   

>4.     
Section
364 status reviews

>a.     
August
2011 status review

            On August
8, 2011, DCFS filed a status review report indicating that David had attended
seven individual therapy sessions with Angela Bissada, who began treating the
child in March of 2011.  In a progress
letter written in May of 2011, Bissada informed DCFS that David had “expressed
his belief that all parents ‘“fight and yell” and his mom and dad never
stop fighting because they are “mom and dad.”’” 
David had also â€œrecalled memories of ongoing parental conflict,” which
“heighten[ed] his anxieties[,] . . . . distorted [his] concept of adult
relationships” and caused him to be “quite confused and intense in his parents’
presence.”  Bissada recommended that the
parents refrain from expressing their anger toward one another in the child’s
presence.

            DCFS’s
report stated that, during the supervision period, the parents had “focused
their energies on past incidents, their mutual resentment and anger and
hostility as it pertains to their ongoing challenges.”  The parents, however, had also made
“concerted efforts to curtail their anger in the presence of [David],” which
caused the child to “demonstrate[] a more positive outlook.”  DCFS also reported that the child indicated
he enjoyed his time with mother and father.  


DCFS further reported that mother
had been attending weekly individual therapy and was almost finished with a href="http://www.fearnotlaw.com/">domestic violence counseling class.  Mother informed DCFS that these treatment
programs had provided her insights into how to identify her anger and improve
her communication with father.  Father
had also been attending individual therapy and completed an anger management
course.  His individual therapist,
Natalie Cohen, told DCFS that father had “admitted to making a mistake in the
past and is currently making progress.” 

In its assessment and evaluation,
DCFS concluded that although the “parents continue to experience a certain
level of discord and blaming behavior, they continue to make concerted effort
in their respective treatment programs. . . Despite this fact, the parents
continue to have significant problems with their communications and
co-parenting issues.” 

            Shortly
before the hearing, DCFS submitted a “last minute information,” which included
an additional progress letter from Bissada and a progress letter from the
parent’s conjoint therapist, Ian Russ. 
Bissada’s letter stated that, “[a]t the outset of treatment, David would
report witnessing multiple conflicts between his parents which involved yelling,
screaming, his being physically pulled between them and of police
involvement.”  Bissada reported that,
over the prior several weeks “David’s direct expression of confusion, anxiety
and sadness as to his parents’ conflict ha[d] decreased . . . ., expressing
[only] that [parents] are not fighting as much, that they are not friends and
that he does not think they ever will be.” 


Bissada’s letter indicated David
had begun expressing his feelings through pictures and stories, which had
“recurring themes of a child having to choose between two parents who live in
different homes, of parents being placed in jail and the child having to help
them escape, of many explosive battles between ‘bad and good guys’ wherein in
the endings frequently involve the ‘bad guys or horrible sharp clawed monsters
. . .’, destroying the entire world and all of its inhabitants.”  

Bissada further stated that
although the parents were making an effort not to engage in “overt conflict in
David’s presence, . . . his current focus on story themes of battles between
bad and good likely project his continued confusion and fear of his parents’
relationship becoming catastrophic.” 
Bisada believed, however, that with continued “effort not to engage with
one another during visit transitions, to not speak by phone in David’s presence
or to speak about the other parent negatively in his presence, David will
develop a more stable outlook on the future” and “gain a more age appropriate
and realistic understanding of conflict resolution.”

            Ian Russ’s progress letter reported that the parents had
attended approximately 30 sessions of conjoint therapy, which began in January
of 2011.  Russ stated that the parents
appeared to be “more cooperative with each other and more able to work in
David’s best interest.”  Mother, however,
was still having “difficulty putting David’s interests in front of her own
wishes,” insisting, for example, that if David was to receive more visitation
time with father during Father’s Day, then she must receive back the same
amount of time at some point in the future. 
Russ reported that the tension and conflict had been reduced
significantly, even during “face to face exchanges.”  Parents had also improved at “making joint
decisions in David’s best interest,” improved their communication skills and
reduced their impulsivity, although mother was reported to be “considerably
more impulsive than father.”

>b.     
November
2011 status review

            In November
of 2011, DCFS submitted a status review report indicating that David had seen Bissada
only four times during the three month supervision period.  According to the father, “the holidays made
it difficult for him to bring David.” 
Bissada provided a progress letter stating that parents told David they
would never live together in the same house, which made him “sad but glad that
they are not fighting as much as they used to.” 
Bissada further reported that there had been a “significant decrease in
David’s dictating and illustrating stories . . . that involve themes of
conflict between ‘bad and good guys’, jail and destruction.  He no doubt benefits emotionally from his
parents ability to co-parent and not engage in conflict in his presence or
during phone exchanges.”  Bissada further
reported, however, that “[m]ore recently” the parents had “trouble maintaining
a cordial co-parent relationship,” which caused David to be “afraid to sleep
alone.”  Mother told Bissada that David
had been sleeping in her bed, but that she was trying to stop him from doing
so. 

            Russ also
provided a progress letter, which stated that he had met with the parents only
four times during the three-month supervisory period.  Russ stated that, overall, “both parents
report that they basically co-parent well, and the frequency and intensity of
their conflicts are greatly reduced from when they began the treatment and even
from this past spring.”  Like Bissada,
however, Russ also reported that the parents’ conflict had recently
“increased.”  According to Russ, parents
had briefly “resum[ed] their romantic relationship . . . [for] between 3 and 7
days [and then] mutually broke up.” Mother was “extremely upset that they broke
up” and they “both accuse[d] each other of being manipulative.”  

            Russ’s
letter also stated that the parents had gotten into an argument concerning
David’s birthday party, which caused mother and David to become upset.  Mother then sent text messages to father
stating that she was going to tell DCFS about their argument; father allegedly
responded by telling her that this would only escalate the problems, which
would be harmful to David.  When Mother
told father she still intended to contact DCFS, father threatened to give
pictures to Russ “proving she was continuing her involvement in prostitution.”  Russ reported that “father [later] admitted
that he threatened mother with showing [Russ] the pictures but not because of
mother’s continued escalation.”  Father
said he had “threatened to do this when mother was demanding that he give her
more than $2000/month [in child support] that he currently gives her.  He said that he threatened her to show that
mother had income she was not reporting.” 
Mother alleged such threats were “emotionally abusive[,] . . . violent”
and demonstrated that parents were engaged in a continuing “‘Cycle of
Violence.’”

            Russ also
reported that mother had become frustrated with him during the therapy sessions
because she did not believe he had adequately acknowledged father’s behavior
was a continuation of a “cycle of violence” or that father had previously
engaged in domestic violence.  Russ
stated that he had informed mother that, over the last four to five months, it
appeared she had done things to provoke father and that father had not
responded in an angry way.  Russ also
clarified in the letter that “it was [his] assessment that when mother and
father were together in the past there was domestic violence and that the
incident which brought this family to the attention of the Court was clearly
part of the domestic violence in which they both participated.”  Russ also reported that David’s principal
reported that mother frequent failed to bring the child to school and often
brought him in late.    

            Russ
concluded by stating that although “the frequency and intensity” of the
parent’s “conflict . . . [was] significantly less than [it was during the] past
spring, mother’s anger [was] increasing and she [was] doing things to provoke
father.”  Father normally would not
respond, but “sometimes, as in the case of his threatening to show [Russ] pictures,
he did respond.”  Russ reported that,
overall, both parents were “more accommodating, and accuse[d] the other less
than before.” Father was “more accommodating . . . and less likely to complain
about medium and minor issues than . . . mother.”  Russ also expressed “concern[] that without both
of them knowing that DCFS and the Court are watching them, the disagreements
and conflict are likely to increase.”  He
recommended that DCFS retain jurisdiction for three to four more months.

            Based on the information provided by Bissada, Russ and
the parents’ individual counselors, DCFS concluded that the parents had
“exhibited positive progress overall as it pertains to their communication in
that they compromise better and that they have made a concerted effort to
resolve challenges that include but are not limited to agreeing to visitation
schedules and David’s overall general care.” 
DCFS further concluded, however, that because some of the therapists
expressed their belief that the parents’ conflict had shown signs of
increasing, the court should retain jurisdiction for an additional three months
of supervision.  The court set an
additional section 364 status review hearing for May 16, 2012.

>B.     >Fathers’
Section 388 Petition and DCFS’s Section 342 Petition

>1.     
Summary
of father’s section 388 petition

            On February
15, 2012, father filed an emergency section 388 petition seeking
sole custody of David, with monitored visits for mother.  The petition was accompanied by a
declaration in which father stated that, during a conjoint therapy session on
February 9, 2011, mother announced David had recently made “suicidal comments”
and that he had been making similar comments for “a long time.”  The declaration stated that, immediately
after the conjoint therapy session, David met with Bissada, who then wrote the
parents an email summarizing her session with the child.  In the email, which was attached to the
declaration, Bissada reported that David had said “he wished he had never been
born and that he doesn’t want to be in this world.”  David also stated that “if he was going to
try to be out of this world he would use a knife . . . from the kitchen” and
that he wanted to stay six-years-old “forever so that he never has to worry
about money.”  Bissada recommended that
the parents keep David away from sharp objects as a precautionary measure and
told them not to discuss the matter with David until they were all able to meet
together.

            Fathers’
declaration stated that, after receiving the email, he was driving in his car
and permitted David to call mother. 
Father alleged David placed the call on speaker phone and father heard
mother, who was speaking in Russian, refer to Bissada by name three times.  Father believed mother was “violating what
Dr. Bissada had just requested that we do” and disconnected the call.  He later sent mother an email “regarding her
violation of Dr. Bissada’s requests to keep our son safe.”  The email was in all capital letters, and
accused mother of having attempted to “steer” her conversation with David toward
the meeting with Bissada. 

            Father’s
declaration also reported that, after receiving Bissada’s email, he brought
David to DCFS, which then transported the child to “Kaiser Hospital as a result
of his suicidal ideation.”  David
remained in the hospital until February 15. 
The declaration stated that, during the visits, David became more
anxious when mother visited and that mother had not respected the staff’s
requests to leave at the end of visitation hours and to refrain from speaking
to David in Russian.

            The
declaration also accused mother of a wide variety of misconduct during the past
several months, which included refusing to bring David to see Bissada, refusing
to bring the child to school on time and allowing the child to sleep in her
bed.  Father also asserted that he
believed mother suffered from “serious depression” and had “talk[ed] about her
own suicide,” which she might “intentionally or unintentionally express to
David.” 

            On February
16, 2012, the court heard father’s emergency section 388 request and told the
parties that it intended to schedule a full hearing because it did not have
enough information to take any action. 
County Counsel agreed with the court’s proposal, noting that DCFS did
not believe mother had been neglectful and was concerned that “father’s main
concerns may be . . . more with custody . . . .and not paying child support
than with David’s safety.”  David’s
attorney also agreed that the matter should be set for a full hearing, stating
that the child “seemed to do much better when he was in a foster care than he
was doing with the parents.”  David’s
attorney did not object, however, to allowing the child to stay with father
until the hearing, explaining: 
“Honestly, I can’t tell who [is] worse, quite frankly, the mother or the
father.  I am concerned, however, that if
there is any truth at all to the indications that the mother would be
expressing the suicidal type of thoughts that this does put David even at even
more severe risk.  And, again, this would
not be a permanent request . . . It would be just until we could come back to
get an update from Dr. Russ, as well as Dr. Bisadda, about what happened in the
interim.”  

            The court left all of its prior orders in place, set a
progress hearing for February 24, 2012 and set a hearing on the section 388
petition for March 16, 2012.

>2.     
 February 24th progress report hearing and
filing of the section 342 petition

>a.     
DCFS’s
status reports

Prior to the February 24th progress
hearing, DCFS submitted an interim report regarding the child’s hospitalization
and the events that had followed.  The
report stated that Bissada believed David’s “psychological well-being” had been
“hugely compromised” as a result of his parents’ relationship and that parents
were “unable to focus on their child’s well-being given their ongoing efforts
to berate one another, while using their son as a pawn to further their
respective agendas.”  DCFS also reported
that it appeared “each parent [wa]s adamantly contending to obtain custody of
their son to the exclusion of the other, as a result, [Bissada] reports that
the child becomes increasingly anxious and thereby continues to
decompensate.  Most recently, the child
had been diagnosed with major depression and anxiety disorder.”

            DCFS also
explained that, on February 21, 2012, it had facilitated a “team
decision-making” meeting (TDM) with Bissada, Russ, the parents, a TDM
facilitator and several social workers. 
The DCFS report stated that although “the parents ultimately agreed to
maintain close supervision of the child, throughout the course of the 2 hour
meeting they were unable to focus on his well-being given their determined
efforts to berate and blame one another for past issues.  Ultimately the meeting was concluded as the
parents were unable to refrain from belittling one another to the extent that
they ignored all attempts to direct their attention to their sons needs.” 

The TDM facilitator expressed the
following observations after the meeting: (1) “there appears to be a lack of
appropriate communication between the parents including inappropriate comments
made about one another to the child”; (2) “the child appears to be under a lot
of stress and is preoccupied with issues as related to their parents’ ongoing
conflict”; (3) the “parents continue to blame each other including ongoing
comments about their past and are not able to focus on the child’s mental
health needs and appear clueless as to how their conflict impact their child,
to the point of hospitalization”; (4) â€œMother feels the service providers
are siding with father given that he is the one who pays the fees”; (5) the
parents “required continued redirecting during the TDM and were still unable to
focus their energy on their child’s needs. Conversely, they continued to blame
each other throughout the meeting which was prematurely concluded as a result.”

            In its
“assessment/evaluation,” DCFS concluded that although the parents had been
cooperative and were in compliance with the court-ordered case plan, they
“appear[ed] to be making no movement toward resolving their highly conflictive relations,
which is dangerously toxic at this point.” 
The social worker who wrote the report, Karla Hosch, noted that she
“continued to receive a daily barrage of e-mails from mother and father wherein
they continue be invested in petty conflicts. [sic.]  The DCFS staff and mental health professionals
are exhausted and hugely frustrated by the parents’ longstanding and extreme
conflict which has to date not been alleviated by various therapeutic
modalities, including but not limited to their past participation in individual
and conjoint therapy . . .”

 Immediately prior to the hearing, DCFS
submitted a “last minute information” accompanied by progress letters from
Bissada and Russ.  Bissada’s letter,
dated February 22, 2012, reiterated that David had expressed “suicidal ideation
stating that he did not want to live in this world and could use a kitchen
knife to kill himself.”  Bissada asserted
that it was “clear that [parents’] ongoing, severe deficiency in the ability to
appropriately co-parent David has contributed greatly to [David’s] emotional
distress culminating in a psychiatric hospitalization.”  Bissada reported that although she had not
witnessed father acting inappropriately in the presence of child, mother had
“repeatedly spoken negatively of [father] in front of David” and “shared
information with [him] that [Bissada] deem[ed] inappropriate,” including her
financial problems and the sadness she felt when separated from David.  Mother also refused to make David sleep in
his own bed, had refused to bring the child to therapy and failed to bring the
child to school on time.

            Bissada’s
letter also stated that, “on several occasions, [David had] expressed his wish
that his parents are [sic] friendly with one another and that they stop
fighting.  Unfortunately, he is instead
exposed to his parents’ chronic conflict as well as to information that is
inappropriate and confusing.  I have no
doubt that his statement, ‘I do not want to live in this world’, and resultant suicidal
ideation is in reaction to the continued war between his parents.  David’s ability to cope, problem solve
independently and function at an age appropriate emotional and psychological
level, has been detrimentally affected by his current environment. . .
Regardless of treatment, he will continue to suffer emotional harm as long as
[mother] refuses to follow recommendations on his behalf and as long as his
parents are unable to co-parent effectively and to shield him from their
conflict.”

            Russ’s
progress letter, also dated February 22, 2012, stated that the parents’
conflict “continue[d] to grow.”  Russ
believed that father had generally followed his suggestions regarding how to
minimize the parents’ conflict, but that mother had “not been cooperative.”  According to Russ, mother had been late to
therapy sessions, refused to discuss certain topics and was interfering with
David’s schooling.  Russ reported that
father stated he did not believe David was “physically safe while in [mother’s]
care” because he thought mother was “suicidal and that if she committed suicide
she would likely kill David as well.” 
Russ told father he had not seen mother engage in “any behavior that
indicated that she was suicidal or presented a physical threat to David in any way.” 

Russ also
reported that, on two occasions, he had become “extremely exasperated with
[mother] and lost [his] therapeutic position.” 
On each occasion, Russ yelled at mother because she was “making big
deals out of small issues,” which was exactly the type of behavior that was
causing the parents’ on-going conflict.

>b.     
February
24th progress report hearing

            At the
February 24th hearing, the court announced that, based on the information it
had received from DCFS, its tentative ruling was to detain David from the
parents.  County Counsel indicated that
DCFS agreed with this position, stating “given what is in the last minute and
the report, the fact that both parents have ongoing, quote ‘severe deficiency
in the ability to appropriately co-parent David . . . culminating in a
psychiatric hospitalization,’ I do think it would be a wise decision to give
this child an emotional reprieve from his parents.”  David’s counsel also agreed with the
recommendation.

Father’s counsel believed David
should be left in father’s custody, arguing that a “careful reading of [Russ
and Bissada’s] letters suggests that [father] has done what he’s supposed to
do” and that the “mother continues to say inappropriate things to the
child.”  Counsel added, however, that if
“that’s what the Court deems is appropriate, he wants whatever is best for his
son.”  Although mother disagreed with
father’s characterization of the evidence, she also indicated that she wanted
whatever the court believed was best for David.

The Court found that continuance in
the parents’ home would be contrary to David’s well-being and ordered him
removed.  The court also ordered DCFS to
make every effort to place David in the same foster home he had been in during
his initial detention, noting David had done “very, very well, in fact better
than at any other time in this case, when he was in [that] foster home.”

            Father’s counsel stated that he wanted to set the matter
for “a trial without waiving time.”  The
court thereafter ordered that the “no time-waiver adjudication date” would be
March 16, the same date set for father’s section 388 petition, and ordered “the
Department to file a petition within 72 hours.”

>3.     
Section
342 petition and jurisdictional report

            On February
29, 2012, DCFS filed a petition under section 342 alleging that David was a
person described in section 300, subdivision (c).href="#_ftn2" name="_ftnref2" title="">[2]  The allegation in support of the petition
alleged, in part, that parents had “emotionally abused the child in that the
parents [sic] ‘toxic relations’ contributed to psychological decompensation of
the child. . . .  Such emotional abuse of
the child on the part of the parents places the child at substantial risk of
suffering serious emotional damage as evidenced by severe anxiety, depression,
withdrawal and aggressive behavior toward himself and others.”  At an initial hearing on the section 342
petition, the court ordered that David was to remain detained with all prior
orders to remain in effect. 

            On March
16, 2012, DCFS submitted a jurisdictional report stating that the agency social
worker had attempted to interview David about the allegations in the section
342 petition, but that he “became anxious when questioned about his parents at
which time he became evasive and fairly unresponsive.”  The social worker interviewed mother, who
acknowledged that her “strained relationship with father has a detrimental
impact on their son.”  Although mother
did not believe David had “been witness to any altercations between [the
parents],” she was aware that he could “sense the tension.”  Mother also believed she and father were
“equally at fault,” and noted that the parents’ conjoint therapy did not “seem
to be helping” their “communication problems.” 


Father, however, “denied
allegations that his relationship with the . . . mother [was] strained” and
believed that Russ had taught them how to “communicate effectively.”  Father stated that he distanced himself from
mother to avoid any strain and had done “exactly” what he was directed to do by
all of the therapists and social workers. 
Father also stated that the “foster father said that mother made David
cry when talking with him on the phone” and denied that the parents’ combative
relationship had caused the child’s depression, anxiety or suicidal ideations.

            DCFS also
interviewed the foster parents, who reported that “mother appears more
nurturing and considerate than father” and that father “presents as immature in
relation to how he communicates with mother.” 
The foster parents also denied ever having told father that mother made
the child cry during phone calls.

            In its
“assessment evaluation,” DCFS concluded that although the parents had received
a “year of family maintenance services,” they “remained unable co-parent
effectively on a regular basis,” which had been a detriment to the child’s
“emotional/mental health status.” 
According to DCFS, the parents still “incessantly blame[d] each other to
the extent that they . . . have a difficult [time] communicating as to their
son’s best interest.”  Based on its
investigation, DCFS concluded that “[w]hile mother desires a more harmonious
relationship with father, father appears determined to further his mission to
obtain sole custody of the child by berating mother and by discounting her
parenting skills.  Mother feels
victimized and contends that because father has money he is able to b[u]y the
allegiance of therapists, school staff, etc.” 
Mother also “continues to report that there are problems with the father
creating lies about her . . .  Father has
submitted numerous documentations to [DCFS], the therapist(s), and he has used
derogatory language in reference to mother and seems invested in presenting
mother in a bad light.”  DCFS recommended
continued placement in the foster home.

            Between March 16 and May 3, 2011, the adjudication of the
section 342 petition was continued several times for a variety of reasons,
including illness, an intervening (and subsequently withdrawn) motion from
father to remove social worker Karla Hosch from the case, court congestion and
attorney vacations.  Father repeatedly
objected to the delays on the basis that the adjudication had not commenced
within 60 days of David’s detention as required under section 352, but that the
court had failed to make a finding of exceptional circumstances.   

>C.     >Adjudication  

>1.     
Summary
of witness testimony

            The adjudication began on May 3rd and continued on
numerous court days throughout May and June. 
Father called himself and four additional witnesses to testify: Karla
Hosch (the DCFS social worker), Bissada, Russ and Meyer Greene, who worked at
David’s school.

>a.     
Testimony
of Karla Hosch

            Hosch
testified that, during an interview she conducted on March 7, 2012, David said
the parents do not talk negatively about each other in his presence.  David also denied telling his mother that he
wanted to hurt himself.  Hosch admitted
that she failed to include this information in any of the DCFS reports that
were submitted to the court. 

Father’s counsel asked Hosch to
explain whether DCFS had concluded that David should be removed from the
parents’ custody during the February 21, 2012 TDM.  The court, however, interjected and informed
counsel that this line of questioning was not relevant.  The court explained that the court, not DCFS,
was the entity that had decided to detain David, and that the decision was
based on information Bissada had provided in a progress letter issued the day
after the TDM was held. 

Father’s attorney then moved for a
mistrial and asked the court to recuse itself for “not letting [him] make a
record  . . . that there was a
determination that there was no risk to this child two weeks after the alleged
incident.”  The attorney also argued for
the first time that the court should recuse itself because it “ordered a
petition to be filed on February 24th.  I
think there is an actual conflict here, where you are going from objective fact
finder to prosecutor.  And I feel my
client is being denied due process.”  The
court denied the motion for mistrial and invited the attorney to file a section
170.1 motion.href="#_ftn3" name="_ftnref3"
title="">[3]  

When father’s counsel asked Hosch
to describe what conduct father had engaged in that allegedly caused David’s
emotional distress, she stated that it was “the conflict between the parents”
detailed in Bissada’s letters.  Hosch
later added that the “combination between the mother and father’s relations”
had “contributed to the consequences of the child’s being placed in the
hospitalization on the 5150.” 

When asked whether she could provide any specific dates on
which the parents had an altercation that caused David’s emotional distress,
Hosch stated that the conflict was “ongoing during the past year.”  Hosch acknowledged, however, that, between
May of 2011 and January of 2012, the child had experienced moments of “positive
progress” and reported being fairly happy and healthy in the care of the parents.  Hosch also stated that, prior to the
hospitalization, David had reported being happy in father’s home. 

Hosch further
testified that she was not aware of any evidence demonstrating that parents had
engaged in a physical or verbal altercation in David’s presence since August of
2011.  She also admitted that: (1) during
David’s hospitalization, she had not spoken to any doctors or seen any medical
records indicating that father caused David’s emotional distress;  (2) she did not receive any information
suggesting that father made comments about mother’s depression in the presence
of David; and (3) as of the February 21 TDM, DCFS did not believe that there
were any “exigent circumstances” that required David’s immediate removal from
parental custody. 

b.     
Summary
of Bissada’s testimony

            Bissada
testified that she believed father had engaged in conflict with the mother
because David had “expressed to [her] that his parents fight and yell at each
other all the time.”  Bissada could not,
however, provide specific dates on which any of these altercations may have
occurred, explaining that David’s “reports were general in that his parents
fight and yell.”  Bissada did not believe
father had ever “emotionally abused” David, clarifying that, in her view, the
term “emotional abuse” would consist of “using statements toward a child that
are damaging to them, emotionally engaging in behavior that the child is
exposed to that are chronically and consistently displayed in the child’s
presence.”   She further clarified that
although she did not believe the parents had emotionally abused the child, she
did believe the parents’ “lack of co-parenting” – which she defined as the
inability to maintain “clear and effective communication . . . in their
treatment of their child” – was a threat to the “emotional best interests” of
David and “affected his emotional well-being in a negative way.”

            Bissada
testified that children “of [David’s] age, six-years old, often have trouble
being able to express themselves through words, and so, through play, they will
project their own feelings and thoughts in their play.”  Bissada described a picture David drew in
March of 2012, which showed a fish between two homes, and a story he had
dictated to her about the fish, which she had written down:  “Fish trying to decide who to live with.  He wants to live with his mom.  His mom will not like it if she knows the kid
fish loves the Dad.  The Dad will not
like it if he knows that the kid fish loves the Mom.  They both don’t want the kid fish to live at
the other house.  They don’t want to
share the kid fish.  The judge says he
can live with the mom but he is still thinking about how many days a month with
the dad.”  Bissada stated that, in her
professional opinion, David’s stories projected his feelings about his parents
and their relationship.

Bissada testified that, contrary to
the therapists’ recommendations, mother had been engaging in the following
detrimental conduct: speaking about father and financial issues in front of
David, permitting the child to sleep in her bed, bringing David to school late
and being at the school during teaching hours. 
Bissada had no information indicating father engaged in any such
conduct. 

Father’s counsel asked Bissada to
explain what specific conduct father had engaged in that caused her to state in
a progress letter that the parents were engaged in a “war.”  Bissada explained that her opinions were
“[b]ased on what the child expressed to me about his parents’ interactions with
one another, as well as what he expressed through his stories and drawings in
our sessions.”  The only specific
instances of actual parental conflict she could recall occurred in 2010 and May
of 2011.  Bissada also admitted she had
never seen father yelling in front of David.

            Father’s counsel
also asked Bissada to discuss the conversation during which David said he did
not want to be part of this world. 
Bissada explained that David said he no longer wanted to be in the world
and wanted to live inside the mouth of a dead octopus.  When Bissada asked David how he would not be
part of this world, David said: “‘I would kill myself” with “a knife from the
kitchen,” adding that he wished he was never born.  

            Bissada
also explained how the child’s behavior had changed since she began her treatment
in early 2011.  According to Bissada,
from March 2011- October 2011, David would tell stories “of families, parents
put in jail, police killing the parents, killing babies, the little boy trying
to get the parents out of jail about the world coming to an end.”  Then, he went through a transition in late
2011 where he actually “played out stories” using toys:  “the bad guys would fight the good guys, and
the good guys would become bad guys, and the bad guys would become good guys
again.  And he would just continue this
conflict back and forth, back and forth, them sucking their power from each
other and turning good, turning bad.”  In
the last six weeks – during which time David had been detained from the parents
– he had “wanted to do art” or write books about animals.  In more recent sessions, David had decorated
a book named “David the artist” and made bracelets with his foster siblings’
names on them.

Bissada also reported that, since
his placement in the foster home, David’s “mood [wa]s much less agitated” and
that he had become more positive about school and his therapy sessions, which
he no longer tried to control.  He had
also stopped asking questions about who was paying for Bissada’s time,
disparities between his parents’ income and whether he could talk to the social
worker and judge about “where he wants to live.”  In Bissada’s view, David’s more recent
conduct demonstrated that he was not “as preoccupied with conflict.” 

            Bissada
also testified that she attended several of the parents’ conjoint therapy
sessions and “observed [parents] having strained relations with one
another.”  Bissada reported that when she
would present information that David had shared, the parents would typically
“deny having spoken to him about the topic,” rather than communicating with
each other about the issue.  She further
reported that “there was a lot of time spent with the parents speaking about
their dissatisfaction with the other parent’s parenting and that took the majority
of the session.”

            Bissada concluded that, overall, two factors contributed
to the child’s “emotional distress”: 
“the mother’s failure to follow [Bissada’s] recommendations and the
parents’ conflict and inability to resolve that.”  More specifically, she believed that “David’s
perception of his parents’ relationship, based on his witnessing their
interactions with one another, contributed to his emotional difficulty.”  She also believed his emotional health had
improved since being placed in the foster home.

>c.      
Testimony
of Ian Russ

Father also called Ian Russ, who
testified that mother frequently showed up late to the conjoint counseling
sessions.  Russ also described numerous
instances in which mother had engaged in conduct that increased the amount of conflict
between the parents, including:  breaking
into father’s house, calling the police to report that father was not giving
David enough food; bringing David to school late; entering the school when
parents were not supposed to be there; and feeding David with a spoon.   Mother also frequently brought up the issue
of money, asserting that father should pay her more than $2,000 a month to
support the child and not deduct expenses from those payments or demand
receipts for the items she had purchased. 
Mother also repeatedly complained that she believed David missed her and
was sad when in the care of father. 
Mother also stopped scheduling conjoint therapy sessions in December of
2011 because she believed Russ was biased against her and that Russ participated
in a “cycle of [domestic] violence” being perpetrated against her by father.

Russ reported that he had also
worked with father on a variety of provocative behaviors, such as “reducing . .
. the amount of rhetoric . . . in emails” and “not talk[ing] about the other
person’s parenting, to not make any accusations.”  Father also complained about the number and
duration of phone calls that DCFS required David to have with mother.  According to Russ, father brought up the
issue of the phone calls repeatedly, stating that they only agitated the child
and “aren’t doing anything.”  Russ also
stated that that “the way [father] would take money away from mother” was
“inappropriate and manipulative” and that “father had issues with being
manipulative and controlling.”  

Russ also testified that father
stated that he had hired an investigator to follow mother and obtain proof that
she was engaged in prostitution.  Father
also admitted he had told the head of David’s school that mother was a
prostitute.  According to Russ, in or
around December of 2011 or January of 2012, father stated that he had tried to
obtain evidence of her prostitution to show that she had financial resources of
her own, and therefore did not need more than the $2,000 a month he provided to
her. 

Russ acknowledged there were “times
in the relationship between mother and father when father has exacerbated the
conflict.”  He also concluded that, prior
to coming to therapy, there were elements of mutual domestic violence in the
parents’ relationship, but did not believe that it was “ongoing.”  Russ believed, however, that father had
become less reactive to mother’s behavior and had grown increasingly
“bewildered” as to what else he could do to appease her.  Russ encouraged father to be even more
sensitive to money issues and the phone calls, and believed father had followed
his recommendations.  Russ also believed
there was not “very much more [father] could do” to reduce the conflict with
mother.  Even after David made his
statements about not wanting to be in this world, Russ was never concerned
about leaving him in father’s care because he was “basically a good dad,
basically attentive to David’s needs . . . and takes pretty good care of
him.”  

Russ also related instances in his
conjoint sessions during which the parents would “digress and get into
arguments about . . . very small details.” 
On one occasion, parents got into a disagreement about the particular
date on which David had attended a birthday party; on another occasion they got
into an argument about what chairs they were supposed to sit in during the
therapy session.  The parents also
briefly resumed their relationship during the course of Russ’s treatment, which
Russ believed to be a “continuation of a pattern they had . . . prior to
beginning therapy” of “getting close and then getting angry and separating, and
then getting close and getting angry and separating.” 

Russ stated
that, in his clinical assessment, “David was aware of [the parent’s] anger and
conflict, even if they didn’t do it directly in front of him.”  

>d.     
Father’s
testimony

            During his
testimony, father was asked to describe the conduct that had caused the
conflict between himself and mother between November of 2011 and November of
2012.  Father listed several issues
related to mother’s conduct at David’s school, mother’s failure to bring David
to therapy or attend conjoint therapy and mother’s sleeping arrangement with
the child.  Father further stated that,
despite this conduct, he had remained “very supportive of [the mother and
David’s] relationship”  

Father did not list any behavior
that he had personally engaged in that heightened the conflict.  He asserted that, during the relevant time
frame, he had never engaged in “any type of activity in front of David” that “caused
him anxiety”; never yelled or raised his voice in front of David; never
discussed financial issues or talked negatively about mother in David’s
presence; and never seen the child “emotionally distraught.”  Father also believed that he was not deficient
in his co-parenting abilities, had complied with all of Bissada and Russ’s
recommendations and had not “played any role in causing David to have suicidal
ideations.”  

            According to father, Bissada had told him during the TDM
that mother was responsible for generating the conflict within David.  He also testified that portions of DCFS’s
reports were “not accurate.” Specifically, father noted that the DCFS reports
did not include any information about statements in Kaiser’s medical records
purportedly “showing conflict [that mother] created” during David’s
hospitalization.  Although father had
given these records to the DCFS social worker, there was no mention of them in
the jurisdictional report.  Father also
reported that he had contacted numerous DCFS employees through letters, emails
and phone calls about complaints he had with the way the social worker was
handling the case.

>e.     
Testimony
of Meyer Greene

            Father also called Mayer Greene, the Judaic Director at
David’s school, who testified that he had never seen father make any
inappropriate comments in front of David or seen David distressed in his
father’s presence.  Greene further
testified that father always brought David to school on time and acted
appropriately at the school; mother, however, frequently brought the child to
school late and was the subject of numerous teacher complaints.  Greene also stated that, while discussing
what might be causing mother to bring David to school later, father had told
him mother was a prostitute.  

>2.     
Closing statements regarding
section 342 petition

            At closing
argument, DCFS and the David’s attorney requested that the court sustain the
allegations in the petition, noting that Russ, Bissada and the social workers
had all reported that the parents appeared more concerned with their own
personal issues than with David’s well-being. 
DCFS and David’s attorney also emphasized that, despite this evidence,
father had taken no responsibility for David’s feelings. 

Father’s
attorney however, asserted that the petition should be dismissed both for
procedural reasons and on the merits. 
First, father contended that the “social worker . . . ha[d] been
unobjective” by “misrepresent[ing] and “distort[ing]” facts to the court.  Father’s attorney also contended that the
juvenile court had violated father’s due process rights by personally “ordering
[DCFS to file] the [section 342] petition.” 
On the merits, father’s counsel argued that: (1) Bissada had