In re Joseph C. CA2/4 ( 2021 )

Filed 1/28/21 In re Joseph C. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re JOSEPH C. et al., Persons B303414
Coming Under Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 19CCJP06483A-B)
Plaintiff and Respondent,
v.
JOEY C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los
Angeles County, Kim Nguyen, Judge. Affirmed.
Serobian Law and Liana Serobian, under appointment
by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickham,
County Counsel, Kim Nemoy, Assistant County Counsel,
and William D. Thetford, Deputy County Counsel, for
Plaintiff and Respondent.
_____________________________________
INTRODUCTION
This case arises in the context of a bitter custody battle
between appellant father, Joey C., and mother, Juana C. (not
a party to this appeal). In December 2019, the juvenile court
found jurisdiction over their children, Joseph C. (born May
2013) and Jennifer C. (born October 2014) under Welfare
and Institutions Code section 300, subdivisions (b)(1) and (c)
(Sections 300(b)(1) and 300(c)) and removed them from both
parents. On appeal, Father contends the court erred by: (a)
finding jurisdiction under Section 300(b)(1) when the
petition filed by the Los Angeles County Department of
Children and Family Services (DCFS) alleged only emotional
harm; (b) finding jurisdiction under Section 300(c) when the
petition alleged only emotional abuse and not serious
emotional damage, and when substantial evidence did not
support a finding of serious emotional damage; and (c)
removing the children from Father’s custody when the
evidence was insufficient to support a finding that they
would be harmed if released to him. DCFS disagrees and
additionally contends that Father has forfeited many of his
arguments by failing to make them below.
2
We conclude: (a) Father has forfeited any challenge
that the language in the petition insufficiently alleges
jurisdiction under Section 300(b)(1), as well as any argument
that Mother’s conduct insufficiently supported jurisdiction
under Section 300(b)(1), but has not forfeited his challenges
to jurisdiction under Section 300(c); (b) the language of the
petition sufficiently alleged jurisdiction under Section 300(c),
and substantial evidence supports the finding of jurisdiction
thereunder; and (c) substantial evidence supports the court’s
order removing the children from Father. We therefore
affirm.
STATEMENT OF RELEVANT FACTS
A. Mother Alleges Abuse
Between May 2017 and April 2019, DCFS received at
least nine reports that Father was physically abusing and
neglecting the children. All allegations were deemed
inconclusive or unfounded.
On August 20, 2019, Mother reported that for
approximately one year, Joseph had been “slapped in the
head by both” Father and his fiancée, G.M. Mother had
taken Joseph to a pediatrician on July 30, 2019, for
evaluation because he “complained of headache, nausea,
stomach pain and the inside of his eye was red” but Joseph
“was refusing to be examined, screamed at the pediatrician
and . . . shut down and did not talk.” Joseph also allegedly
told Mother that Father “was mad and made the child drink
3
his urine.”1 Mother alleged both children would often return
from visits with Father with rashes. Mother also alleged
Jennifer had stated she “wanted to die” because G.M. forced
her to call G.M. “mother.”
On September 25, 2019, the child protection hotline
received a report from Mother that after returning from a
visit with Father, Jennifer had touched herself in a sexual
manner after Mother had bathed her. When asked what she
was doing, Jennifer allegedly explained that G.M. had
touched her in a similar manner. Jennifer said G.M. had
called her “‘private part a tootie’” and said, “‘she touches me
deep inside my tootie.’”2
1 On August 21, 2019, Mother brought six-year-old Joseph to
the Baldwin Park Police Department to report this incident.
Once there, Joseph would not speak with the officer alone, and
hid under the chair that Mother sat in. Expressing his belief that
when someone lied, “‘They go to jail,’” Joseph would say only that
he liked living with Mother but not with Father; he would not
answer any questions about the alleged urination incident, or any
questions about Father. After speaking with Father, the Baldwin
Park Police Department determined the allegations were
“unfounded at this time.”
2 Mother also took Jennifer, who was not yet five, to the
Baldwin Park Police Department to report this allegation. After
Mother explained the allegations, the police officer sat next to
Jennifer, who was playfully hiding under the table to have a
picnic. The officer asked her, “‘How was school’”? Jennifer
responded, “‘[G.M.] touched me here and went in deep’” as she
pointed to her vaginal area. Jennifer continued playing, and the
officer could get no further information. Jennifer also stated she
did not know the difference between good and bad. The officer
(Fn. is continued on the next page.)
4
B. DCFS Hears Conflicting Stories
1. First Visit with Father; Children
Accuse Mother
When a children’s social worker (CSW) visited Father
in late August 2019, Father claimed that Mother regularly
accused him of child abuse whenever he was scheduled to
visit with the children. He stated he was in a “custody
battle” with Mother, and had unsuccessfully tried to get full
custody through family court. He denied any abuse, and
explained he disciplined the children by placing them in
“time out” or taking away their toys. He contended the
children chose to call G.M. “mom” and Mother “Juana.”
Both Joseph and Jennifer appeared healthy. When the
CSW first arrived at the house, he saw them running and
laughing in the front yard. Both referred to G.M. as “mom,”
and Mother as “Juana.” Both denied abuse by Father or
G.M. and, in response to a question, Jennifer said she
disliked being at Mother’s house because “‘Juana is crazy.’”
G.M. and her son (who was living with Father and G.M.)
also denied Mother’s allegations.
2. Visit with Mother; Joseph Accuses
Father
When the CSW visited Mother’s home in early
September 2019, he saw a bruise on Joseph’s back. While
noted that “Jennifer[’s] statement was verbatim to how [Mother]
explained it.”
5
Joseph claimed not to know where the bruise came from, he
now stated Father would hit him in the head. The CSW also
attempted to interview Jennifer while at Mother’s home, but
she was running around the house and refused to answer the
CSW’s questions.
3. Second Visit with Father; Children
Accuse Mother Again
A CSW visited Father’s home again in late September,
and again spoke with each child alone. Joseph stated he was
afraid of “Juana,” that she had hit him in the stomach the
day before, and that she had made Jennifer and him lie to
the police and to the doctor. Joseph appeared happy and had
no marks or bruises. Jennifer also stated she was afraid of
“Juana,” and alleged that when Mother had taken Jennifer
to the doctor’s office, Mother instructed her to tell the doctor
that G.M. was hurting her. Jennifer also alleged that
Mother instructed her to tell G.M. that “she is SHIT” and to
tell Father to “shut up.” Jennifer reported that Mother hit
her.
4. Third-Party Statements
DCFS spoke with the children’s family law attorney in
mid-September. He reported that “the children change their
stories when they are with their parents regarding both
parents using corporal punishment.”
DCFS also received two e-mails from the children’s
pediatrician in September. The first stated that since March
2014, Joseph had been brought to the clinic approximately
6
60 times. The first abuse allegation was in June 2017, and
there had been 24 visits since then. The pediatrician stated
“many of the reasons he is seen are for very minor issues /
rash however mother has made it a point that she wanted
such things to be documented. Many of these office visit[s]
occur after Joseph returns home from Dad’s.” The second
e-mail reported that Mother had brought Jennifer to be
examined for allegedly being “touched in her private area,”
and that Jennifer’s vagina “appeared open” but there was no
bleeding or tearing. The pediatrician also relayed that
Jennifer had said “they” touched her “‘tutti,’” but did not
specify who or when.
A Baldwin Park Police Officer told DCFS that Mother
had made multiple accusations of abuse against Father or
G.M., and that these reports typically happened “right before
a visitation exchange.” The officer opined that Mother was
jealous of Father’s new relationship and thus made false
allegations against them both. He did not think it necessary
for Jennifer to receive a forensic exam.
When Father brought the children to a Hub forensic
exam, both reported being afraid of Mother. Jennifer
reported Mother hit her with a sandal and “touch[ed]” her
“very deep on [her] ‘tootie.’” However, Jennifer reported this
was done with her clothes on, and that it did not hurt, just
tickled.
Joseph’s teacher reported that Joseph often had
behavioral issues after returning from a visit to Father’s
7
home and that Joseph had said he did not want to go to
Father’s home and that when he did, he missed Mother.
In October 2019, the mother of Father’s other son
stated she had been in a 10-year custody battle with Father
over her son, and that Father had reported her to court
several times. She denied any physical altercations, but
stated there was some verbal abuse in their four- to five-year
relationship, with a lot of fighting and screaming. She had
no concerns regarding physical or sexual abuse of her son,
who visited Father weekly.
C. DCFS Files a Petition and Subsequently
Amends It
DCFS met with both parents and attempted to
implement a safety plan, but Mother would not agree to
extend any plan past October 2, 2019. DCFS therefore
advised that it would seek to remove the children from her
custody. The court signed an expedited removal order and
the children were detained in Father’s home.
Two days later, DCFS filed a petition on behalf of
Joseph and Jennifer under Welfare and Institutions Code
section 300, subdivisions (a), (b)(1), (d), and (j). Both parents
denied the petition, and the court found a prima facie case to
detain the children with Father.
In November 2019, DCFS filed a first amended
petition. As with the previous petition, counts a-1, b-3, and
j-2 identically alleged that Mother “physically abused . . .
Jennifer” reciting that, “[o]n a prior occasion, the mother
8
struck the child on the buttocks with a sandal” and Jennifer
was “afraid of the mother.” Counts a-2, b-4, and j-3
identically alleged that Mother “struck [Joseph] in the
stomach” and “[o]n prior occasions, the mother pinched the
child.” Counts b-2, d-1, and j-1 identically alleged Mother
sexually abused Jennifer by “fondl[ing] the child’s vagina
over the child’s clothes.”
Count b-1 alleged that Mother endangered the children
by subjecting them to “numerous unnecessary interviews
with social workers, law enforcement officers, and doctors, as
a result of the mother’s allegations of abuse to the children
by the father and the father’s female companion, G[.] M[].,”
and discussed a specific doctor’s visit on September 24, 2019.
The count also alleged that Mother “has taken the children
to the doctor approximately sixty times after the children
visit with the father for possible abuse and neglect of the
children by the father” and “has spoken negatively about the
father in the presence of the children.” The count
additionally alleged that Father and G.M. “instructed the
children to refer to the mother by her legal name, Juana[,]
and to say that they are scared of the mother because the
mother is mean to them. Further, the father failed to secure
mental health services for the children.” These actions
placed the children “at substantial risk of suffering serious
emotional damage as evidenced by severe anxiety,
depression, withdrawal and aggressive behavior towards self
and others.”
9
Count c-1 alleged both parents emotionally abused the
children by engaging in an ongoing custody dispute, which
included Mother making ongoing abuse and neglect
allegations against Father, subjecting the children to
numerous unnecessary interviews with social workers, law
enforcement officers, and doctors. Count c-1 also alleged
that Father and G.M. instructed the children to refer to
Mother by her legal name and say they were scared of her,
and that Father failed to secure mental health services for
the children.
D. DCFS Continues to Investigate
1. Statements from the Family
In late October 2019, a dependency investigator (DI)
spoke with Joseph, who stated that Mother was “mean,” that
he was scared of her, and that she was “disgusting.” When
asked why Mother was disgusting, Joseph responded it was
because she “‘eats trash.’” When asked whether he saw her
eat trash, Joseph responded that he did not know. When
asked what “disgusting” meant, Joseph responded that he
did not know. When asked what she did when he did
something she did not like, he stated she slapped him, but
demonstrated by hitting his own stomach with an open
hand. However, when asked why Mother hit him, how many
times she hit him, and whether she hit him anywhere else,
his response was, “‘I don’t know’” to each question. He
contended that Mother also struck Jennifer. However, he
also told the DI that Father and G.M. had instructed him to
10
call Mother “Juana” and to say she was mean and disgusting
because she ate trash. When asked how it made him feel
when Father and G.M. told him to say these things, Joseph
responded, “‘I feel sad but I don’t cry. Juana said my dad is
“stupid.”’” Jennifer refused to speak with the DI, and would
run away screaming when she approached or spoke with her.
Father stated that one day Jennifer hit G.M. in the
buttocks with a sandal, and stated it was what Mother had
done to her. He also relayed that Jennifer had said both
Mother and Mother’s adult daughter hit her and told her she
was not nice. He recognized that Jennifer “has excessive
tantrums and can isolate [her]self at school” and Joseph “has
anger fits, excessive tantrums, [and] hurts [him]self when
upset.” Father reported that after he and Mother split up,
the children were confused: if they were with Father, they
did not want to go with Mother, but if they were with
Mother, they did not want to go with Father. Additionally,
“Jennifer pulled her hair out when we brushed her hair and
[had] severe tantrums.” He recognized “‘[t]he kids are
extremely emotional and Jennifer bites herself.’”
Mother claimed the children were being coached, and
denied hitting them or sexually abusing Jennifer. Mother’s
adult daughter stated she had never seen Mother hit
Jennifer, and that Mother was “‘not the kind of mom that
hits.’” She also denied Mother was coaching the children, or
had molested Jennifer; in fact, she stated she had heard
Jennifer say, “[G.M.] put her finger in me,” and stated she
had seen Jennifer was “red down there.” Mother’s sister also
11
stated she had never seen Mother hit the children, but that
Father was “very controlling.” She opined that “[e]verything
got bad after she (mother) filed for child support.” She
reported that during Mother’s monitored visits with the
children, Father would park his car in a visible location and
sometimes hold his cell phone up as if he were recording
them. After DCFS asked Father to park elsewhere, Mother’s
sister stated that Joseph began calling Mother “mom”
instead of “Juana” and appeared more relaxed, asking for a
snack that he had declined when Father’s car was visible.
The mother of Father’s other son stated that Father
was “controlling” and that she left him “because he was
mentally and emotionally abusive . . . .” During her custody
battle with Father, he “would accuse me of doing things to
my son when in fact he was the one doing them. . . . Twice,
he has made false allegation[s] of abuse against me. . . . He
uses the kids as puppets to make himself look better.”
2. The Children’s Therapy
The children had been receiving therapy since July
2017. A November 2017 progress report from Pacific Clinics
stated that Joseph presented with “depressive symptoms at
intake (isolation, numbness, defiance).” A progress report
from the same day stated that Jennifer presented with
“aggressive behavior (hitting, biting).” A March 2018
progress report stated Joseph was working on “reducing
defiant, isolative behavior, and crying from 7x / week to 3x /
12
week” and Jennifer was working on reducing her “aggressive
behaviors (hitting, defiance) from 3x / day to 0x / day.”
On August 8, 2019, the therapist mailed two letters to
Father, stating Joseph’s and Jennifer’s therapy was being
terminated because Father had not responded to an attempt
at contact made on July 29, 2019. On September 3, 2019,
Joseph had an assessment appointment at Tri-City Mental
Health Services, but he arrived and left without receiving an
assessment. Father explained that Mother had taken
Joseph to Tri-City without notifying Father, which upset
Father. When Father arrived at Tri-City, he was told
Mother had gotten angry and left with Joseph before Father
arrived. He also stated that Mother enrolled Joseph with his
previous therapist without Father’s knowledge and Father
felt that therapist was biased against him.
On October 28, 2019, the children began receiving
therapeutic services through court-ordered wraparound
services.
3. The Children’s Education
In November 2019, Joseph’s teacher reported concerns
that Joseph was regressing academically after being
detained from Mother. Joseph was not completing
homework, arrived late to school, and had excessive
absences. Father reported that Joseph refused to do his
homework, and Father “gives up when attempting to
complete homework with Joseph.”
13
Jennifer’s teacher also reported Jennifer had more
absences after being detained from Mother, and that she was
concerned regarding Jennifer’s behavior. Jennifer would cry
when G.M. would drop her off at school, and she would
isolate herself from the rest of the class, playing with other
children only if they approached her and invited her to play.
Additionally, the teacher stated Jennifer was defiant, not
following directions, and not learning. Jennifer’s teacher
commented that prior to the children’s detention, both
parents would disparage the other to her.
DCFS’s jurisdiction/disposition report opined that “the
children have learn[ed] to adapt to the parents[’]
dysfunctional co-parenting strategies by reporting negative
things about the mother when they are in the care of the
father and saying negative things about the father and his
girlfriend when they are in the care of the mother.” DCFS
concluded that it was “highly likely that both [Mother] and
[Father] have at different times, coached the children to
speak negatively about the other one . . . .”
E. The Children Are Removed from Father
In December 2019, DCFS filed an ex parte application
to remove the children from Father, on the grounds that he
was failing to meet Joseph’s educational needs and was
emotionally abusing the children. Both children’s counsel
joined DCFS’s request, and the court granted the
application, placed the children in shelter care, and granted
Father visitation, but ordered that G.M. have no contact
14
with the children. Despite the court’s order, Father brought
the children to DCFS’s office while accompanied by G.M.;
DCFS informed Father that the children were to have no
contact with G.M.3 Nevertheless, after the children were
placed in foster care, Father had the children speak with
G.M. via telephone and once during a visit at a DCFS office,
when the monitoring CSW took a break, Father attempted to
have the children communicate with G.M. through
FaceTime.4
F. Adjudication and Disposition
In late December 2019, the court held a combined
adjudication and disposition hearing. Preliminarily, the
court indicated that DCFS had agreed to withdraw all but
counts b-1 and c-1 from the first amended petition. The
court also admitted several pieces of evidence, including a
letter from Hillsides Family Resources Center, stating that
wraparound services for the children had begun on October
28, 2019, and that Father had been “very cooperative with
the services and flexible with his time.”
3 At the jurisdictional hearing, Father testified that G.M.
had been picking the children up from school when the court
made its order, and then G.M. went to the courthouse to pick
Father up. Because the family had only one car, all four of them
went to DCFS’s office to transfer the children to DCFS.
4 At the jurisdictional hearing, Father testified that he was
not trying to have the children speak with G.M. through
FaceTime, but was instead showing Joseph pictures of Father’s
other son, whom Joseph said he missed.
15
Two witnesses testified: Kelsey Glass, the children’s
therapist from wraparound services, and Father. Glass
testified that she began seeing the children on October 28,
2019, and had been in Father’s home three or four times, for
approximately one hour per visit. Father was cooperative
and communicative, and the children were comfortable with
Father and G.M. Glass observed positive interactions
between the children and Father and G.M. and never saw
them instruct the children to say negative things about
Mother.
Father explained that the children were often late to
school because he lived in Baldwin Park, and they attended
school in Pomona. Father had wanted to place the children
in a school closer to his home, but DCFS told him not to.
Regarding mental health services for the children, Father
stated they had previously received such services from
Pacific Clinics until mid to late August. Father explained
the services from Pacific Clinics ended because he was not
allowed to participate, and the people at the clinic would
neither see him nor return his phone calls. Joseph was then
assessed by Tri-City but never received services from them
because DCFS told Father that wraparound would take over.
Father denied ever telling the children to call Mother by her
given name, or coaching them to disparage or express fear of
her. Regarding being present when Mother was visiting
with the children, Father stated he did not realize it was
improper, and that he did so because he lived far from the
visitation site and had decided to wait for the visit to end
16
rather than drive home. Once DCFS asked him to leave,
however, he complied.
The court then heard argument. Counsel for the minor
Joseph asked the court to sustain counts b-1 and c-1, with
the amended language DCFS had proposed. Joseph’s
counsel argued there was evidence that both parents were
falsely accusing the other of abuse, causing the children to
undergo multiple interviews and examinations, and there
was no evidence the parents understood their behavior was
inappropriate, or that they were willing to work to remediate
it. Regarding disposition, Joseph’s counsel requested that
the children be removed from both parents and “suitably
placed.” Counsel for the minor Jennifer joined in the
arguments made by Joseph’s counsel.
Father’s counsel argued the court “should take
jurisdiction in this matter” under Section 300(b), arguing
that the children were being damaged by Mother’s behavior
and false accusations.5 However, Father’s counsel asked the
court to strike the allegation that Father failed to secure
mental health services for the children as unsupported by
evidence, and to change the allegation that “parents have
spoken negatively” to “Mother has spoken negatively with
respect to Father.” Father’s counsel argued the court lacked
5 While it was initially unclear that Father’s counsel wanted
the court to take jurisdiction only under Section 300(b) (and
based solely on Mother’s conduct), when the court later asked her
to argue regarding disposition, she responded, “I’m sorry, your
honor. I haven’t addressed [count] c yet.”
17
jurisdiction under Section 300(c) because the children’s
emotional issues did not “rise to the level of [Section 300](c)
with respect to serious emotional damage.” If the court
ruled otherwise, Father’s counsel requested that it find
Mother, not Father, to be the cause of the emotional damage.
Finally, Father’s counsel argued that should the court take
jurisdiction, the children should be released to Father.
Mother’s counsel argued that Father’s testimony was
not credible and that it was obvious the children were being
coached. Counsel “submitt[ed]” on both the b-1 and c-1
counts, offering no argument, and stated Mother was coming
to the court “with her hat in her hand,” and was enrolled in
all services recommended by the court. Mother’s counsel
requested the court release the children to Mother or,
alternatively, permit the children to move into Mother’s
home along with their maternal grandparents, while Mother
moved out.
Counsel for DCFS joined in the arguments made by the
children’s counsel that jurisdiction should be sustained as to
both counts, and that the children should be removed from
both parents.
The court sustained the amended b-1 count, finding
“ample evidence . . . that both parents have subjected the
children to such a toxic environment that indeed they place
the children at substantial risk of serious physical harm.”
The court believed the children’s statements that Father
instructed Joseph to disparage Mother and told Jennifer to
call G.M. “mother” over Father’s contrary testimony, which
18
the court did not find credible. The court found that the
children had been “mercilessly coached” by both parents.
The court likewise sustained the amended c-1 count,
pointing not only to the evidence supporting the b-1 count,
but to the evidence that the children “exhibited physical
manifestations of the emotional abuse” and were “exhibiting
extreme behavior and mental health issues.”
As sustained, the amended b-1 count provided that
Mother “placed the children in a detrimental and
endangering situation in that, the mother and the father,
Joey C[.], have engaged in an ongoing custody dispute, which
includes the mother making continuing accusations that the
father is abusing and neglecting the children. The mother
subjected the children to numerous unnecessary interviews
with social workers, law enforcement officers, and doctors, as
a result of the mother’s allegations of abuse [of] the children
by the father and the father’s female companion, G[.] M[].
On 9/24/19, the mother subjected the child, Jennifer to a
medical exam for possible sexual abuse and medical neglect.
On 9/24/19, the mother subjected the child Joseph to a
medical exam for possible medical neglect. Additionally the
mother has taken the children to the doctor approximately
sixty times after the children visit[ed] with the father for
possible abuse and neglect of the children by the father. The
parents have spoken negatively about each other in the
presence of the children. Further, the mother has been
admonished by the Court to refrain from making allegations
against the father to DCFS. Moreover, the father, and the
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father’s female companion, G[.] M[.] have instructed the
children to refer to the mother by her legal name, Juana[,]
and to say that they are scared of the mother because the
mother is mean to them. Further, the father failed to secure
mental health services for the children. The detrimental and
endangering situation created for the children by the father
and the mother, places the children at substantial risk of
suffering serious emotional damage as evidenced by severe
anxiety, depression, withdrawal and aggressive behavior
towards self and others.”
The amended c-1 count provided that Mother and
Father had “abused the children. Such emotional abuse
consisted of the mother and father engaging in an ongoing
custody dispute, which includes the mother making ongoing
accusations that the father is abusing and neglecting the
children. The mother subjected the children to numerous
unnecessary interviews with social workers, law
enforcement officers, and doctors, as a result of the mother’s
allegations of abuse to the children by the father and the
father’s female companion, G[.] M[]. Moreover, the father,
and the father’s female companion, G[.] M[.] have instructed
the children to refer to the mother by her legal name,
Juana[,] and to say that they are scared of the mother
because the mother is mean to them. Such emotional abuse
of the children by the parents resulted in the children
demonstrating anger issues, aggressive behaviors, isolating
behavior, defiant behaviors, and poor impulse control.
Further, the father failed to secure mental health services
20
for the children. Such emotional abuse on the part of the
mother and father places the children at substantial risk of
suffering serious emotional damage as evidence[d] by
aggressive behaviors towards self and others.”
Because the court found by clear and convincing
evidence that no safety measures could protect the children,
it removed them from both parents and ordered a custody
evaluation under Evidence Code section 730. Father timely
appealed.
DISCUSSION
A. Forfeiture
DCFS argues that Father may not challenge whether
count b-1 sufficiently alleges jurisdiction under Section
300(b)(1). It also argues that Father is foreclosed from
challenging jurisdiction on either count to the extent such
challenge is based on the sufficiency of the evidence of
Mother’s conduct to warrant jurisdiction. Finally, it
contends Father has forfeited any challenge to the court’s
taking jurisdiction under Section 300(c) based on an
argument that there was no danger to the children. We
agree that Father has forfeited any challenge to the
sufficiency of the petition to allege jurisdiction under Section
300(b)(1) as well as any challenge to the court’s taking
jurisdiction under Section 300(b)(1) based on Mother’s
conduct. We disagree that Father is barred from challenging
the court’s taking jurisdiction under Section 300(c).
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1. Father May Not Challenge the
Sufficiency of the Allegations Under
Count B-1
Father argues the court erred in finding jurisdiction
under Section 300(b)(1) because the allegations in count b-1
“failed to even remotely allege how the custody battle or lack
of mental health services caused ‘serious physical harm or
illness’ to the children, as statutor[il]y required to declare
the children under subdivision (b).” DCFS responds that
Father has forfeited this argument because he did not
challenge the sufficiency of the petition below. Father does
not dispute that he failed to raise this argument below and
thus we agree that he has forfeited it on appeal. (In re
Christopher C. (2010) 182 Cal.App.4th 73, 82 [father
forfeited claim that amended petition did not state cause of
action by failing to object in juvenile court]; In re David H.
(2008) 165 Cal.App.4th 1626, 1640 [“Allowing parties to
challenge the facial sufficiency of a petition for the first time
on appeal conflicts with the emphasis on expeditious
processing of these cases so that children can achieve
permanence and stability without unnecessary delay if
reunification efforts fail. [Citation.] Enforcing the forfeiture
rule requires parties to raise such issues in the juvenile
court where they can be promptly remedied without undue
prejudice to the interests of any of the parties involved”].)
Here, the defect Father alleges could easily have been raised
and addressed below.
22
We also note that while Father is correct that count b-1
lacks an allegation the children suffered physical harm, the
court expressly found “ample evidence in this matter that,
leading up to the department’s involvement in this case with
this petition, that both parents have subjected the children
to such a toxic environment that indeed they place the
children at substantial risk of serious physical harm.”
Father has not challenged this finding.6
6 Father does argue that “the allegation that father didn’t
provide the children with mental health services was not even
remotely true as father did participate in in-home Family
Wraparound Services and was highly cooperative with allowing
mental health providers into his home,” and therefore any finding
that he failed to provide mental health services cannot be
affirmed due to lack of substantial evidence. To the extent this
constitutes a substantial evidence challenge to the court’s
finding, we reject it. The therapist from wraparound services
testified she did not begin providing services until October 28,
2019, and Father testified he was unsure when the children’s
therapy had ended, but he thought it was “mid to late August.”
In fact, Father received two letters on August 8, 2019, stating
Joseph’s and Jennifer’s therapy had been terminated because
Father had not responded to an earlier attempt to contact him.
Additionally, while Joseph had an assessment at Tri-City Mental
Health Services in early September, that assessment apparently
did not occur because Father was angry that Mother had taken
Joseph to Tri-City without notifying him. Substantial evidence
supports a finding that there was an almost 3-month period
during which the children were deprived of mental health
services due to Father’s actions.
23
2. Father Has Not Forfeited His
Challenge to Jurisdiction Under
Section 300(c)
Father also argues that the court erred in taking
jurisdiction under Section 300(c), and DCFS again counters
that Father has forfeited this challenge to the extent it is
based on Mother’s conduct or an argument that there was no
evidence that the children’s well-being was endangered. We
disagree.
While Father’s counsel did ask the court to take
jurisdiction based on Mother’s conduct, counsel was referring
only to the b-1 count. Though this was unclear when counsel
first made her remarks asking the court to take jurisdiction,
when the court later asked her to speak as to disposition, she
responded, “I’m sorry, your honor. I haven’t addressed
[count] c yet,” indicating that all her previous comments had
been directed toward count b-1. And, when counsel did
address the c-1 count, she argued Section 300(c) was
inapplicable because the evidence did not “rise to the level”
needed to take jurisdiction under that subsection.7
Therefore, Father has not forfeited any challenges to the
court’s taking jurisdiction under Section 300(c).
7 DCFS recognizes this in its brief: “Regarding count c-1,
father’s attorney argued the allegation was insufficient to allow
for jurisdiction under section 300, subdivision (c).”
24
B. Jurisdiction Under Section 300(c)
“On appeal, the ‘substantial evidence’ test is the
appropriate standard of review for both the jurisdictional
and dispositional findings.” (In re J.K. (2009) 174
Cal.App.4th 1426, 1433.) Under a substantial evidence
review, “‘we view the record in the light most favorable to
the juvenile court’s determinations, drawing all reasonable
inferences from the evidence to support the juvenile court’s
findings and orders. Issues of fact and credibility are the
province of the juvenile court and we neither reweigh the
evidence nor exercise our independent judgment.’” (In re
Joaquin C. (2017) 15 Cal.App.5th 537, 560.)
Section 300(c) permits a court to take jurisdiction over
a child if it finds “[t]he child is suffering serious emotional
damage, or is at substantial risk of suffering serious
emotional damage, evidenced by severe anxiety, depression,
withdrawal, or untoward aggressive behavior toward self or
others, as a result of the conduct of the parent . . . .” (Welf.
& Inst. Code, § 300, subd. (c).)
Here, the petition alleged that the parents’ ongoing
custody dispute, including Mother’s continued accusations
regarding Father and Father’s instructing the children to
call Mother by her first name and tell DCFS they were
scared of her, “resulted in the children demonstrating anger
issues, aggressive behaviors, isolating behavior, defiant
behaviors, and poor impulse control. Further, the father
failed to secure mental health services for the children.
Such emotional abuse on the part of the mother and father
25
places the children at substantial risk of suffering serious
emotional damage as evidence[d] by aggressive behaviors
towards self and others.” In sustaining the count, the court
found that both parents subjected the children to a “toxic
environment,” that the children had been “mercilessly
coached” by their parents, that they had “exhibited physical
manifestations of the emotional abuse,” and that they were
“exhibiting extreme behavior and mental health issues . . . .”
Father argues the court erred in taking jurisdiction
under Section 300(c) because the c-1 count alleged only
“‘emotional abuse,’” not “‘serious emotional damage,’” and
there is no evidence of “‘severe anxiety, depression,
withdrawal, or untoward aggressive behavior toward self or
others.’” We disagree.
As to the sufficiency of the language in count c-1,
Father is mistaken: the count specifically alleged that the
parents’ emotional abuse “places the children at substantial
risk of suffering serious emotional damage . . . .”
As for Father’s contention that substantial evidence
does not support the court’s finding, we disagree. A
November 2017 progress report from Pacific Clinics stated
that Joseph presented with “depressive symptoms at intake
(isolation, numbness, defiance) . . . .” A progress report from
the same day stated that Jennifer presented with
“aggressive behavior (hitting, biting).” A March 2018
progress report stated Joseph was working on “reducing
defiant, isolative behavior, and crying from 7x / week to 3x /
26
week” and Jennifer was working on reducing her “aggressive
behaviors (hitting, defiance) from 3x / day to 0x / day.”
Other evidence shows that in several instances, the
children manifested severe anxiety when being interviewed
about the allegations made by the parents. On July 30,
2019, Mother brought Joseph to his pediatrician to be
examined because G.M. had allegedly “smacked him in the
head,” but at the doctor’s office, he “refus[ed] to be examined,
screamed at the pediatrician and . . . shut down and did not
talk.” On August 21, 2019, Mother brought Joseph to the
Baldwin Park Police Department to report that Father had
forced Joseph to drink Father’s urine. At the police station,
Joseph refused to speak with the officer alone, and hid under
Mother’s chair. He refused to answer questions about the
alleged urination incident or any questions about Father.
Father himself reported that Joseph “has anger fits,
excessive tantrums, [and] hurts [him]self when upset.”
Similarly, Jennifer refused to speak with a DI, and ran
away screaming whenever the DI approached her. Father
also reported that Jennifer “has excessive tantrums and can
isolate [her]self at school.” He told a DI that after he
separated from Mother, “Jennifer pulled her hair out when
we brushed her hair and [had] severe tantrums.” He
recognized “‘[t]he kids are extremely emotional and Jennifer
bites herself.’” Moreover, it was reasonable for the court to
conclude that the children’s suffering stemmed from the
“toxic environment” that both parents created by coaching
their children to disparage and accuse the other parent of
27
abuse. Thus, substantial evidence supports the court’s
finding that the children suffered from “severe anxiety,
depression, withdrawal, or untoward aggressive behavior
. . . .” (Welf. & Inst. Code, § 300, subd. (c).)8
C. The Court Did Not Err in Removing the
Children
Father contends the court could not remove the
children from his custody “unless the Department proves by
clear and convincing evidence that there is ‘a substantial
danger to the physical health, safety, protection, or physical
or emotional well-being of the minor[s] if the minor[s] were
returned home,’ and that even with the provision of services,
there is no other reasonable way to protect the child[ren].”
Here, the court made such a finding: “there is clear and
convincing evidence of substantial risk of detriment if the
children are left in the care and custody of either parent
today,” and “there are no safety measures that can be put in
place.”
8 In re Brison C. (2000) 81 Cal.App.4th 1373, on which
Father relies, is inapposite. Brison C. stands for the proposition
that a child’s fear and dislike of a parent alone is insufficient to
support a finding of emotional disturbance sufficient to take
jurisdiction under Section 300(c). (Brison C., supra, at 1380.)
Here, there is much more than the children’s expressed dislike
for whichever parent they were not currently with; as discussed,
both children were acting out in ways indicating they were being
“mercilessly coached” by both parents, to their demonstrable
detriment.
28
Father urges us to reverse the removal order because
the parental conflict and any failure to secure mental health
services for the children did not cause serious physical or
emotional damage to the children, and there was insufficient
evidence that there was a substantial danger to the children
if they were released to Father. Again, we disagree.
The court found that both parents spoke negatively
about the other, were “mercilessly coach[ing]” the children to
make accusations regarding the other parent, and had
subjected the children to a “toxic environment.” As
discussed, substantial evidence supports these findings.
Father himself admitted the children’s behavior became
problematic after he and Mother separated, and while they
disagreed on fault, both parents agreed they were engaged in
a custody battle. Father has never taken any responsibility
for his role in creating the toxic environment, instead
denying any wrongdoing. The harm caused to the children,
combined with Father’s lack of insight, are substantial
evidence supporting the court’s finding that the children
were at substantial risk of detriment if left in Father’s care,
29
and that no safety measures could be put in place to protect
them.9
9 Father also argues that substantial evidence does not
support the court’s finding that he told the children to call
Mother by her given name, or that he failed to procure mental
health services for the children. As to the first point, the children
explicitly stated that Father had told them to call Mother by her
given name. As to the second, the evidence shows that the
children’s therapy was terminated in early August due to
Father’s failure to communicate with the therapist’s office, but
therapy through wraparound services did not begin until the end
of October. In any case, these were hardly the only reasons that
the court removed the children from Father.
Similarly, Father argues that the children’s lateness to
school or his intrusion on their visits with Mother were
insufficient reasons to remove them from his custody. Again,
these incidents were not the only reasons for removal, but instead
were part of a pattern of behavior undermining the children’s
relationship with Mother as part of the ongoing custody battle,
which contributed to the emotional damage inflicted on the
children.
30
DISPOSITION
The court’s jurisdictional and dispositional orders are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
31