In re S.H. CA1/3 ( 2014 )

Filed 6/12/14 In re S.H. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re S.H. et al., Persons Coming Under the
Juvenile Court Law.
T.H.,
Plaintiff and Respondent,
v. A138887
DEPARTMENT OF SOCIAL SERVICES (Alameda County
OF ALAMEDA COUNTY, Super. Ct. Nos. OJ12018648,
Defendant and Appellant. OJ12018649, OJ12018650)
T.H., father (Father) of 17-year-old S.H., 15-year-old I.H., and 13-year-old R.H.,
appeals from the juvenile court’s jurisdictional and dispositional orders sustaining
allegations against him and the children’s mother (Mother), continuing the children’s
placement with Mother, and ordering family maintenance services for Mother and
informal child welfare services for Father. He contends the evidence was insufficient for
the juvenile court to sustain the allegations and exercise dependency jurisdiction over the
children. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On March 27, 2012, the Department of Social Services of Alameda County (the
Department) filed a dependency petition on behalf of S.H., I.H., and R.H., after Mother,
with whom they reside, got into a physical altercation with the older daughter, S.H. The
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son, I.H., called 911, and Mother “began fighting” with police as soon as they arrived.
There was a history of domestic violence between Mother and Father, and the children
had witnessed the violence. There was also a history of verbal and physical altercations
between Mother and S.H. and Mother and I.H., and the younger daughter, R.H., had
witnessed these altercations. There was a five-year restraining order in place against
Father that prohibited him from having contact with the children. Father did not have a
stable home.
According to the detention report, the family had been referred to Child Protective
Services (CPS) on 11 occasions beginning in July 2000 for various allegations including
physical, emotional, and sexual abuse, caretaker absence, and general neglect. Three
referrals were “unfounded,” three were “inconclusive,” four were “evaluated out,” and
one referral for physical abuse was “unfounded, substantial risk, substantiated.” In an
interview with the Department, Mother denied hitting the children and said S.H. and I.H.
had behavioral issues. S.H. stayed out late at night and spent time with “ ‘the wrong
girls.’ ” I.H. yelled profanities at her, and on the night he called 911, he “threw [Mother]
against the wall and then onto the floor” and kicked her. Father said that Mother was a
“ ‘good mother’ ” and would not have hit the children. CPS records indicated Father had
ongoing mental health issues and had several criminal arrests dating back to 1986 and
one conviction for driving with a suspended license.
S.H. said that Mother “ ‘was just pushing on [her] and screaming’ ” on the night of
the incident. S.H. had a mark on her left forearm that she said Mother caused when she
hit S.H. with the broad side of a butter knife. I.H. said that Mother was “ ‘out of
control’ ” and “ ‘slaps us and hits us and doesn’t know how to talk.’ ” He said he called
911 in order to protect his sister. He admitted calling Mother names and being abusive
towards her and said, “ ‘I have anger problems. So what?’ ” R.H. said the family
“usually is screaming at each other.” She believed Mother “ ‘sometimes . . . overreacts
about things.’ ” All three children said they wished to have contact with Father; I.H. said
he wished to live with him.
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At a March 27, 2012 team decision meeting, I.H. said he was worried he would
not be able to see Mother again. He acknowledged he had pushed, shoved, and cursed at
Mother and said he wanted to go home because “ ‘she’s a good mom.’ ” He also wished
to see Father, but said he had never said he wanted to live with Father. R.H. said she
wanted to go home to Mother and also wanted to see Father. All three children expressed
an interest in receiving family counseling, and Mother agreed to attend family and
individual counseling. At the detention hearing, the juvenile court returned the children
to Mother’s home.
A first amended petition was filed on April 11, 2012, adding allegations against
Father that he had a history of sexually abusing S.H. According to the petition, on or
about January 12, 2012, S.H. told police that Father molested her between the ages of 7
and 13. On at least one occasion, Mother witnessed Father touch S.H. on her breasts
under her clothes. The petition further alleged that Father had a history of using
inappropriate physical discipline on I.H. and a history of using emotionally abusive
language towards all three children.1
In a jurisdiction report, the Department recommended that the children be made
dependents of the court and remain in Mother’s home, with family maintenance services.
The Department recommended that Father receive informal child welfare services.
Mother reported that Father was “very verbally and physically abusive to her” and
“sometimes beat her.” On one occasion, Father told I.H. that he would give him $20 if he
called Mother a “Bitch.” I.H. did as asked. On another occasion, Father told I.H. that he
would give him $20 if he harmed Mother with a B.B. gun. I.H. hit Mother in the arm
with a B.B. gun as Mother covered her face with her hands.
Father told the Department that he needed to see the children. He denied he had
hurt them and denied the allegations of sexual abuse, stating, “I’m a Muslim, we’re not a
pedophile.” When asked about his arrest for domestic violence, he said “it was just an
allegation” and that “everything” was “a lie.” He said the police must have
1
A second amended petition containing the same allegations under different
Welfare and Institutions Code subdivisions was filed April 18, 2012.
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misinterpreted what Mother was saying because she speaks “broken English.” He said,
“I never laid hand on my kids or my wife. In Algeria [where the family is from], I have a
free hand to do anything I want on her, she did the worst to me in Algeria [by taking the
children from him for three weeks without telling him] and I never laid a hand on her.”
Father was receiving disability income for problems with his back, knees, and ulcers.
Mother was diagnosed with cancer in or about 2008; the cancer was in remission.
The Department recommended that the children have visits with Father in a
supervised and/or therapeutic setting. The Department expressed concern that the
children were not forthcoming regarding the abuse because of their past experience with
CPS and with police investigations.
In a May 16, 2012 addendum report, the Department recommended that the
children be made dependents of the court and that they remain in Mother’s home, with
family maintenance services to Mother and informal child welfare services to Father.
Mother was in agreement with the recommendations; Father was not. According to the
report, S.H. participated in an interview with a child interview specialist. S.H. said that
the past sexual abuse report she made was “ ‘false’ ” and that no child abuse had ever
occurred in her home. She denied anyone had ever touched any of her private parts and
said, “ ‘I’ve always felt comfortable and safe at home.’ ” She wished to have visits with
Father.
In a June 29, 2012 addendum report, the Department reported it was concerned
with Mother’s failure to follow through with her individual therapy. Mother said she did
not feel she needed therapy but that she would obtain mental health services. S.H. had
between 37 and 53 absences for the school year and numerous tardies, and had failed all
of her classes. She had been missing her therapy appointments since school ended and
said she would rather spend time with her friends. I.H. struggled with his behavior and
school attendance. He was being considered for a “ ‘counseling enriched special day
class,’ ” and it was recommended that he receive mental health services. R.H. was
receiving individual therapy. Her school attendance was good and she had average
grades.
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Father’s records from John George Psychiatric Pavilion (John George) were
attached to the report. He had three episodes with Alameda County Mental Health before
being admitted to John George from November 1 to 16, 2000. He was admitted on a
“5150 hold [Welfare and Institutions Code section 5150] after the police brought him in
‘secondary to explosive behavior at home.’ ” During a police interview, Father “ ‘was
noted to be severely psychotic, stating “mothballs scare and suffocate my family.” ’ ” He
refused foods and fluids and was not compliant with taking neuroleptics. The intake
evaluation provided a diagnosis of schizophrenia, paranoid type; his discharge summary
indicated he was diagnosed with post-traumatic stress disorder.
Father was also admitted to the psychiatric hospital from May 19 to 25, 2004, after
being placed on a 5150 hold for a domestic situation. He was “angry because his wife
uses certain agents like fabric softener, nail polish, etc, that he feels is affecting the health
of his children and himself.” The “ ‘Exit Disposition’ ” stated Father “ ‘will be admitted
for stabilization of his delusions and olfactory hallucinations.’ ” He was discharged with
a diagnosis of “ ‘Adjustment Disorder with Disturbance of emotion and conduct.’ ”
Father was again admitted to the psychiatric hospital on November 10, 2009, after
being placed on a 5150 hold. Mother reported that Father “ ‘wakes up in the middle of
the night screaming, hits the children, insults the children and wife.’ ” Father denied any
psychotic symptoms and said that Mother frequently made false reports about him. The
discharge summary stated that Father “ ‘has had ten contacts with Alameda County
Mental Health since November 1993.’ ” The summary further noted that Father “ ‘does
not exhibit significant psychiatric impairment, therefore, there are no criteria to treat him
in a psychiatric facility against his will.’ ” He was discharged on November 12, 2009.
According to an October 25, 2012 addendum report, I.H. was attending individual
counseling but said he was not going to family therapy because “it is too much to do
both.” (CT 339)~ S.H. reported she had improved her school attendance. She preferred
to do only individual counseling and not family counseling. She had a 6 p.m. curfew and
had been getting home on time. R.H. said “everything is fine at home right now.”
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According to a March 1, 2013 addendum report, the family had been working on
their communication skills. I.H. continued to arrive late to school and his therapists were
working with him on the issue. S.H. had been skipping class on a regular basis and had
25 absences from one of her classes and 52 tardies from all of her classes. It was
determined that S.H. should transfer to a school where she would be allowed to make up
her credits and get back on track to graduate. She transferred to the new school in
February and S.H. was enjoying the school. She said she had not been skipping any
classes and was arriving to school on time. She was enjoying her individual therapy
sessions. R.H. said that things were “about the same at home.” She reported that I.H.
was “ ‘annoying’ ” and mean to Mother and sometimes tries to “get physical” with
Mother. Everyone was trying to “just go to their rooms” when I.H. was upset, to give
him space to calm down. According to the report, there had been some challenges with
securing a space for therapeutic visits with Father. The Department reported that Father
and the children would still be able to have supervised visits at the Department’s office.
In an April 2, 2013 addendum report, the Department stated that I.H. had
continuing challenges at school and had been diagnosed with Attention Deficit
Hyperactivity Disorder. A new behavior plan was put in place for him. On March 21,
2013, S.H. had a light bruise on her eye. She said that I.H. punched her in the face on
March 14, 2013, after becoming upset that S.H. had “snuck her 24-year-old boyfriend
into her bedroom.” I.H. denied hitting S.H. and said S.H. must have received the bruise
from her boyfriend. I.H. acknowledged he had a party at his home and that some of his
friends brought marijuana and alcohol. Mother called the police and the police
handcuffed him and placed him in the back of a police car. I.H. said he had a lot of
alcohol that night and felt sick for a long time after the incident. On May 24, 2013, a
juvenile wardship petition was filed alleging I.H. had received stolen property. R.H.
seemed less engaged and was somewhat withdrawn during family therapy.
Father filed a motion to dismiss the allegations against him, and on May 13, 2013,
the court dismissed the allegations of sexual abuse. On May 22, 2013, a third amended
petition was filed deleting the sexual abuse allegation and adding an allegation against
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Father that he “has a long history of mental illness and instability and has been
hospitalized at John George . . . on three separate occasions, in 2000, 2004, and 2009.”
At a contested jurisdictional hearing that took place over the course of several
inconsecutive days, Mother testified that Father had been violent towards her in front of
the children and violent and abusive towards the children. On one occasion, Father
choked I.H. and I.H. vomited. Father also gave money to I.H. to get him to say bad
things to Mother or hit her with a B.B. gun. Mother sought a restraining order against
Father several times, in 1998, 2000, 2004, and 2010. A five-year restraining order was
granted in 2010. She testified that when Father was living in the home, he was prescribed
psychotropic medications but did not take them, and was referred to a psychologist but
refused to see one. Mother believed Father was mentally ill because he would get up at
2 a.m. and go to the garage, or would be in his room by himself, crying or laughing a lot.
He did not seem to sleep much at all and would awaken the whole family up at 5 a.m.,
even if there was no school. In 2000, Father went to John George for the first time after a
neighbor called 911 because Father was running after Mother with a knife, saying, “I am
going to cut your face, because you use too much makeup and you look at yourself in the
mirror too much.”
Mother further testified that she had seen Father touch S.H.’s breast in 2009 or
2010, and that when Mother told him to stop, Father responded that S.H. is his daughter
and he will do what he wants. Father refused to stop and touched S.H. every morning;
Mother called 911. The Mobile Crisis Unit arrived and spoke to S.H., and Father moved
out of the home on May 26, 2010.
S.H. testified in chambers that she ran away from home in January 2012 but did
not remember why, and did not recall telling a police officer that Father had molested
her. She did not remember telling the officer that one of the reasons her parents fought so
much was because Father was touching her inappropriately. S.H. testified that she was
afraid of getting Father into trouble. She believed that if she told the judge that Father
had molested her, Father would be in a lot of trouble. When the court asked her whether
she would change her answer as to whether any touching occurred if the court told her it
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would consider allowing her to visit Father even if he did touch her, she responded,
“Yeah, because he did. If he did.” When the court asked, “Did he or did he not?” she
responded, “He did not touch me.” She denied there was any physical fighting between
her parents and denied there was any hitting between Mother and her, or between Mother
and I.H. She said that Mother did hit her with a butter knife, but that it was an accident.
I.H. testified in chambers that his parents physically fought in front of the children
when Father still lived in the home. He denied that Father had offered him money to hurt
Mother or call her a bad name. He remembered Mother saying to him in 2009 or 2010
that Father had touched S.H.’s breasts and buttocks. He did not believe this had actually
occurred. He testified that Father called him and his sisters “dumb” or “stupid” and said,
“[d]on’t be dumb,” “[f]ollow your religion,” and “[d]on’t be like one of those
Americans.” I.H. said that Father did push him up a wall but never hit him. He said he
was not telling the truth when he previously told a social worker that Father choked him
so badly that he vomited.
A social worker testified that past CPS history, regardless of outcome, is relevant
in a case because it indicates there have been concerns about safety risk factors to the
children. She testified there was a discrepancy in what S.H., I.H., and R.H. had reported
over time, and she was concerned that the many interviews had the impact of causing
them to become less forthcoming. Father communicated with her only in the beginning
of the case, then stopped returning her calls. She was concerned that the issue leading to
Father’s repeated hospitalizations had not been addressed in therapy.
Father testified that he was unemployed and receiving disability income for his
back and stomach problems. He began receiving disability income in 1999, after his
brother passed away and he became “very depressed.” He testified that the Department
had come to his home to interview him and his family about eight to ten times. He never
laid a hand on anyone, and he had never called his children bad names. He explained that
he gets up very early because in Algeria, it is very hot, so that people get up at 3 a.m. and
go to work, and return home before it gets too hot at 7 a.m. He testified there was
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“[n]othing personal” between him and Mother, and that most of their arguments were
about the children.
Father further testified that he was first taken to John George in 2000, when the
police told him he had the choice of going to jail or to a “crazy house.” He was
interviewed by a medical person “physically” and did not receive any counseling sessions
with a psychiatrist or psychologist after his discharge. He testified he was involuntarily
taken to John George again in 2004 after he had an argument with Mother about her use
of a fragrance or softener. In 2009, he was sent to John George after he had an argument
with Mother about a man who was coming to their home and buying gifts for S.H. and
taking Mother and the children on trips in his car. Father testified that he went to
Berkeley Mental Health for the first time in 2000. He did not need any mental health
services and was taking only Tylenol. He did not remember anyone at John George
recommending that he engage in therapy, or that he be assessed for medication. He had
never had therapy and did not believe he would gain anything from it. He did not believe
that his visits with his children needed to be supervised. He had no regrets in the way he
parented his children before 2010; the only thing he would do differently is that he would
not call for social workers because they only helped Mother do things that were against
his interests.
Father’s witnesses testified that they never saw Mother and Father hit each other,
and never saw Father hit the children. One of the witnesses who was a neighbor said he
sometimes heard Mother and Father arguing and that Mother and Father would call him
over to help them resolve their issues. Their arguments were most frequently about the
children, and sometimes over “cooking.”
At closing, the Department argued it had met its burden of showing, by a
preponderance of the evidence, that the allegations in the petition were true. Minors’
counsel agreed the juvenile court “needs to take jurisdiction” and noted that “the situation
in the home continues to be very chaotic and has not gotten much better at all since the
case first opened.” Counsel also asked that the children be allowed to visit with Father.
Mother’s counsel stated she had “no issues with the court taking jurisdiction over the
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children because the [Department] has met its burden of proof.” Father’s counsel argued,
among other things, that there was insufficient evidence to sustain the allegations against
him.
The juvenile court found true the allegations that Mother had a physical altercation
with S.H. that caused I.H. to call the police and that there was a history of domestic
violence between the parents, and a history of altercations between Mother and S.H., and
Mother and I.H. The court found that Father had a long history of mental health issues.
The court ordered that the children remain in Mother’s care and granted family
maintenance services to children and Mother and informal child welfare services to
Father. The court modified the restraining order against Father to allow for therapeutic,
supervised visits, to be determined by the Department after consultation with therapists.
DISCUSSION
Father raises various arguments in support of his position that the juvenile court’s
orders must be reversed. He asserts, for example, that evidence of “PAST ISOLATED
INCIDENTS OF INCONCLUSIVE, UNFOUNDED REPORTS”—without other facts to
suggest that such abuse would recur—does not support a finding under Welfare and
Institutions Code section 300, subdivision (b). He also asserts the Department did not
meet its burden of proving that Father had a long history of mental illness, or that he left
the children without any provision for support. In essence, Father’s contention is that
there was insufficient evidence for the juvenile court to sustain the allegations in the
petition and exercise dependency jurisdiction over the children. We reject his
contention.2
2
The Department argues the appeal must be dismissed because “a jurisdictional
finding good against one parent is good against both,” and Father has not challenged the
allegations against Mother. The record does not support the Department’s position.
Even though Father focuses on the allegations against him, he does also challenge,
generally, the taking of jurisdiction over his children. He argues, for example, that
“[t]here is no harm in this household that rises to the level that safety or the minors are at
risk,” and that the “single isolated incident between [Mother and S.H. was insufficient] to
establish the physical harm will occur again.” We therefore decline to dismiss the appeal
and shall address the merits of Father’s contention.
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When we review a juvenile court’s jurisdictional or dispositional findings, our task
is “to see if substantial evidence, contradicted or uncontradicted, supports them.
[Citation.] In making this determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we review the
record in the light most favorable to the court’s determinations; and we note that issues of
fact and credibility are the province of the trial court. [Citation.]” (In re Heather A.
(1996) 52 Cal.App.4th 183, 193.)
A child is within the juvenile court’s jurisdiction and may be adjudged a
dependent when, inter alia, “[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 . . . to adequately supervise or protect the child, . . . or by the inability of
the parent . . . to provide regular care for the child due to the parent’s . . . mental illness,
developmental disability, or substance abuse.” (Welf. & Inst. Code, § 300, subd. (b).) A
child may be adjudged a dependent of the juvenile court if the actions of either parent
bring her within at least one of the statutory definitions in section 300. (In re Alysha S.
(1996) 51 Cal.App.4th 393, 397; see In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1554.)
This accords with the purpose of a dependency proceeding, which is to protect the child,
rather than to prosecute the parent. (See, e.g., In re Malinda S. (1990) 51 Cal.3d 368,
384, partially superceded on another ground as recognized in In re Cindy L. (1997)
17 Cal.4th 15, 22, fn. 3.)
Here, there was sufficient evidence for the juvenile court to take jurisdiction over
the children. As Mother conceded and the children’s counsel pointed out, there was
significant chaos in the home and the situation had not improved much since the original
petition was filed. The family had a long history of CPS involvement and incidents of
physical altercations and verbal abuse among family members. Mother was unable to
control the children, which often resulted in verbal and physical altercations between her
and S.H. or her and I.H., or between I.H. and his sisters. The court had expressed serious
concerns about Mother’s ability to parent, including the fact that I.H. had coerced her into
allowing a party to go on in the home that involved marijuana and alcohol, even though
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she eventually did call the police. The children—especially S.H. and I.H.—were
consistently having problems at school, including failing their classes, being suspended,
and having serious attendance issues. They were not consistently attending family and
individual counseling. As the dependency proceedings continued, R.H., whose issues
were not as severe as those of her siblings, was becoming less engaged and withdrawn
during family therapy. In light of the heated arguments and physical altercations among
family members caused by Mother’s failure to parent and control the children, it was
reasonable for the juvenile court to find there was a substantial risk the children would
suffer serious physical harm if they remained in her care without court supervision.
Father spends the majority of his briefs arguing about the lack of evidence to
support the allegations against him. As noted, however, “a jurisdictional finding good
against one parent is good against both. More accurately, the minor is a dependent if the
actions of either parent bring her within one of the statutory definitions of a dependent.”
(In re Alysha S., supra, 51 Cal.App.4th at p. 397.) Because the evidence was sufficient
for the court to take jurisdiction over the children based on the allegations against
Mother, we need not additionally address the court’s findings as to Father. In any event,
under the deferential standard that governs our review, the record contains sufficient
evidence to support the findings as to Father as well.
Father asserts, for example, that there was insufficient evidence of a history of
domestic violence between him and Mother, or a history of him using abusive language
towards the children. There was ample evidence, however, that Father had been
physically violent towards Mother in front of the children, and that he verbally abused the
children by calling them names. Mother testified that Father beat her in front of the
children, causing her to call the police and seek restraining orders against him on multiple
occasions. On one occasion, Father choked I.H. and I.H. vomited. I.H. denied Father
had caused him to vomit but acknowledged Father pushed him up against a wall and
called him and his sisters names. There was evidence that Father gave money to I.H. to
get him to say bad things to Mother or hit her with a B.B. gun. Father suggests that these
“past” incidents cannot be used to support the present allegations against him, but he fails
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to recognize that the risk of harm to the children based on his actions continues because
of his lack of insight, failure to accept any blame, inability to see the need for court
intervention, and refusal to engage in any kind of treatment.
Father also asserts there was insufficient evidence to support the finding of
jurisdiction based on the allegation that he “has a long history of mental illness and
instability and has been hospitalized at John George . . . on three separate occasions, in
2000, 2004, and 2009.” There was evidence, however, that he was involuntarily
hospitalized at John George on three occasions and was diagnosed at various times with
schizophrenia, paranoid type, post-traumatic stress disorder, adjustment disorder with
disturbance of emotion and conduct, and described as psychotic with paranoid delusions.
Although harm to a child cannot be presumed from the mere fact of a mental illness of a
parent, evidence of past conduct may be probative of current conditions, and in some
cases a risk to a child’s physical health and safety is inherent in the absence of adequate
supervision and care. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1652.) A parent’s
denial about problems, refusal to acknowledge responsibility, and failure to express a
willingness to change, are relevant in assessing risk of detriment in sustaining
jurisdiction. (In re A.J. (2011) 197 Cal.App.4th 1095, 1103–1106.) Here, the risk
continued because Father denied any mental health issues and the issues therefore
remained untreated.
Finally, Father challenges the finding of jurisdiction based on the allegation
against him that he left the children without any provision for support due to the five-year
restraining order that prevents him from having any contact with them. He forfeited this
argument by failing to object below. He asserts on appeal that “forfeiture is not
automatic” because this court “has discretion to excuse forfeiture in cases presenting an
important legal issue.” However, he has failed to show that the issue presents an
important legal question that requires us to address it for the first time on appeal.
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DISPOSITION
The orders are affirmed.
_________________________
McGuiness, P.J.
We concur:
_________________________
Pollak, J.
_________________________
Jenkins, J.
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