IN RE: DOMINIC C. et al., Persons Coming Under the Juvenile Court Law. _ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. PAUL C., Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Father appeals from a judgment in which the juvenile court found that it had jurisdiction over Father's two children pursuant to Welfare and Institutions Code section 300, subdivision (b) 1 and made a dispositional order which did not return the children to Father's custody. We find that substantial evidence supported the jurisdictional finding that there was a substantial risk that the children would suffer serious physical harm or illness as a result of Father's failure or inability to adequately supervise or protect the children or by his willful or negligent failure to provide the children with adequate food, clothing, shelter, or medical treatment, or by his inability to provide regular care for the children due to his mental illness, developmental disability, or substance abuse. We also find that substantial evidence supported the finding, pursuant to section 361, subdivision (c) that return of the children to father's custody would substantially endanger the children's physical health, safety, protection, or physical or emotional well-being. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Initial Referral: An initial referral on October 7, 2008, alleged emotional abuse of Dominic C., age 12, and Christina C., age 7, by their father, Paul C. (Father). The referring party stated that Father was aggressive, very threatening, easily agitated, very demanding, and acted bizarrely. Christina and Dominic had been absent from school since September 8, 2008. Father had alleged that someone had threatened his family and a weapon was brandished in front of his home.
Father, interviewed on October 7, 2008, said he kept his children home because they had severe colds, and emphasized that he cared for the children to the best of his ability since his wife Cynthia C. passed away on July 29, 2002. Father told the CSW he had to be careful because people he did not know stalked him, broke into his home and took his things, used his credit cards, and stole his identity. Father said he was being charged on credit cards he never applied for, and that someone broke into his home and stole the deed to his house, and someone had changed the names on his will.
Father, awaiting a knee replacement, said he took no medication except Advil for knee pain. Father was reported to have gone to his children's school to drop off medicine for Christina while she was absent and at home. Father said this was done by another person who impersonated him. When asked why his children did not attend school for nearly a month, Father said he felt his children were safer at home with him. The CSW reported that Father seemed appropriately concerned with the children's care, and the house was clean and had plenty of food.
Dominic was interviewed. He appeared to be in good health and had no cold symptoms. Dominic said he was absent from school because he had been sick. Dominic also said someone was breaking into their house and that Father was not exaggerating. Dominic stated he was well cared for and that Father did not emotionally abuse him. Dominic felt that Father was very protecting and possibly a little over-zealous, but was a loving father who spent a lot of time with the children and who never hit or yelled at them. Dominic said he never saw his father acting bizarrely or saying something that did not make sense. Dominic had no marks or bruises indicating physical abuse.
Christina was interviewed. She said Father was a sweet man and took good care of her. She said she was absent from school because she had a cold. She had no marks or bruises indicating physical abuse. Both minors were robust, clean, and appeared well cared for.
Following the investigation of the October 7, 2008, referral, the CSW concluded that the children took advantage of Father's mental health issues and convinced him they were ill, and his insecurities and paranoid behavior kept them from attending school. The CSW assessed Father as not posing a threat to the children and as capable of caring for them. Father, however, had definite mental health issues that needed to be addressed and displayed symptoms of paranoia.
On October 21, 2008, school personnel reported that Christina's attendance the previous day was her first since September 8, 2008. Father was at the school the previous day, spoke with the principal and was rude and arrogant as usual, and was aggressive in front of the child, demeaning, threatening, and rude, causing the principal to call school police because of his behavior. Father stated that there were terrorist threats and that someone was trying to adopt his children. School personnel reported that Father's behavior was usually very erratic.
Second Referral: On November 17, 2008, a second referral alleged that Father phoned the school and told the school secretary he would not send Dominic to school that day because someone might try to poison Dominic. Father also stated that a person shot him on November 15, 2008, and tried to poison him on November 16, 2008. On November 17, 2008, Father reported that someone broke into his home and put poison in his Diet Coke. Dominic was reported as habitually absent from school, last attended school on November 10, 2008, and was absent the rest of the week. Dominic had missed 27 days of school. The Sheriff's Department was contacted. Sheriff's Deputy Bennett responded and reported numerous prior contacts with the family. Deputy Bennett reported there was little food in the home and Father was unable to arrange care for the children. Sheriff's deputies took custody of Dominic and Christine, placed Father on a 5150 hold, and took him to Olive View Mental Health Hospital. The children were taken to the DCFS and placed in foster care.
Dominic was interviewed on November 18, 2008. Dominic believed people had broken into his home and poisoned the food, because on his birthday he ate some chicken cooked by Father and became ill with a stomach ache and diarrhea. Father then took Dominic and Christine to a motel where they stayed for a night. Dominic believed people were stalking him and Christine, and stated that since May 2008 “they follow us everywhere,” although Dominic did not know who was harassing them or why. He also believed Father's identity had been stolen and that people had charged Father's credit cards. Dominic also felt that his aunt Lisa might try to kidnap them because she wanted them for the money. Dominic reported that Father did not trust anyone and had no friends. Paternal grandmother and Father did not speak, maternal grandmother was in a mental institution, and maternal grandfather had remarried and had not spoken to him since their previous placement in foster care in 2005.
Christina was also interviewed. She reported that she and Father heard voices coming from the outside saying bad words. She saw a gun in a man's hand when they went to McDonald's and Father drove away quickly. She said her aunt tried to take her away from Father when she was little. She said Dominic checked on her throughout the night and told her that if anyone came to the window she should scream for help. She said Father had fixed a window so it would open only a little bit so that no one could get into the home.
On November 18, 2008, Father told a CSW that he had no relatives to consider for placement, accused the CSW of taking his children, denied mental health problems, and accused social workers of stealing his identity and charging his credit card.
The CSW's assessment indicated that Father did not meet the children's needs for supervision and food, and Father's current mental health state and 5150 mental health hospital hold rendered him incapable of caring for the children.
Prior Dependency Proceeding: In a prior dependency proceeding due to caretaker absence and incapacity, Dominic and Christine were detained on October 10, 2004, and family reunification services were provided from October 29, 2004, to July 12, 2005. The sustained petition alleged that on October 10, 2004, and on prior occasions, Father left Dominic and Christina without adequate supervision; Christina was found playing in a motel parking lot unsupervised at 9:30 p.m. and Dominic was found alone in the motel room. Father had left the children alone for extended periods without supervision. Father had a history of substance abuse, related arrests and nine convictions on substance abuse-related charges, and was a registered substance abuse offender. The children were released to Father after he completed a 14-session parent education course on July 12, 2005. Juvenile court jurisdiction was terminated on June 5, 2006.
Father's Criminal Record: Father had an extensive criminal record. In 1987 and 1989, he was a registered controlled substance offender. He was convicted of petty theft in 1974 and of forgery in 1977. Father was charged with assault with a deadly weapon in 1979 and placed in mental health custody in Patton State Hospital (and was discharged in 1980). Father was convicted on a warrant for non-sufficient funds in 1982, of use or being under the influence of a controlled substance, and of possessing a narcotic controlled substance in 1985, of being under the influence of a controlled substance in 1986, of forging/altering vehicle registration in 1986, on a warrant under the influence of a controlled substance (sentenced to 16 months prison), of violating parole in 1988, of possessing controlled substance paraphernalia in 1990, of using or being under the influence of a controlled substance in 1992, and of possessing a narcotic controlled substance in 1995 (sentenced to two years prison). In 2004, Father pleaded no contest to child endangerment.
Detention: On November 20, 2008, the juvenile court found that a prima facie case for detaining Dominic and Christine and showing that they were persons described by section 300, subdivision (b) was established, ordered the children detained, and ordered temporary placement and custody vested with the DCFS.
Section 300 Petition: On November 20, 2008, the DCFS filed a section 300 petition alleging that Dominic and Christine had suffered, or there was a substantial risk they would suffer, serious physical harm or illness as a result of Father's failure or inability to supervise or protect them adequately and as a result of Father's inability to provide regular care due to Father's mental illness, developmental disability, or substance abuse.
The matter was set for an adjudication and dispositional hearing which ultimately took place on March 16, 2009. The DCFS filed several reports over the next four months concerning the family.
In a December 5, 2008, interview, Father denied he had mental and emotional problems. He said he and the children were victims of burglary, terrorist threats, and harassment, but that he took good care of his children despite numerous break-ins and having his identification stolen. Father said neighbors in his mobile park neighborhood put holes in his water heater and another person stopped in front of the family's home and said, “I hate those two kids.” In his recent hospitalization, Father was told he was Bi-Polar and had schizophrenia, but he said he had neither of those things; he was told that he was addicted to drugs, but said he was not; and he was given Respridol and Motrin, but he refused to take either drug. Father stated that on discharge he was referred to a psychiatrist, but Father said he was not going to see a psychiatrist because he was fine. Father denied any drug addiction history.
The children's maternal aunt, Lisa L., was interviewed on December 5, 2008. She said she was putting a security system in her home and that Father regularly terrorized her family and left threatening messages, which frightened maternal aunt. She said Father was a meth addict and had the children “so medicated.” Maternal aunt stated that she tried to help when the children went into foster care in 2005, but wanted nothing to do with Father. Maternal aunt's sister was the children's mother, who had told maternal aunt that Father used heroin and abused pain medicines, stalked people, was threatening and suspicious of people, and was controlling of Mother, who was severely depressed and an alcoholic. Maternal aunt was in the process of filing against Father with the Stalk and Threat Investigation Office of the District Attorney because of Father's history and emotional problems. Maternal aunt stated that Dominic and Christine were good at protecting Father, who would try to coerce them.
Paternal grandmother, interviewed on December 6, 2008, expressed no surprise that Dominic and Christine were in foster care. She had not seen them in over a year, and was angry at Father, whom she said was on drugs. Paternal grandmother said Father could have had a lot of help but because of what he had done no one wanted to deal with him. Paternal grandmother said she would not put up with him, and Father's brothers would not even talk to him. Father had stolen money from one of his brothers. Paternal Grandmother said she had trouble with Father since he began to use drugs as a teenager. Paternal grandmother said no relatives were interested in having Dominic and Christine placed with them, and none of the family wanted anything to do with Father.
The DCFS assessed Father as having mental and emotional problems, including a recent one-week involuntary hospitalization, and exhibiting paranoia and delusions, including a belief that he and the children were being stalked, that some had stolen his credit cards and identification, and that someone was trying to poison them. Father kept the children out of school for 27 days because of his paranoia that someone would poison or abduct them. Father refused to seek mental health help or take prescribed psychiatric medication. Father said he would take his children back and that the DCFS had no right to detain them. There was serious concern Father might abduct the children. Father had a history of hospitalization for his mental health problems, most recently on November 17, 2008. Father had a long criminal and drug history, and currently took pain medication to deal with his drug addiction. Father was uncooperative, threatening, and made statements that he would take his children when he wanted to. No family members came forward to assist Father due to his mental and emotional problems and history of terrorizing with phone calls. At the time of their November 17, 2008, detention, Dominic and Christine had no access to food in the home.
The children's mother passed away on July 29, 2002. Both the maternal and paternal sides of the family had cut off communication with Father and the children. Father's adult brothers and his mother did not want to interact with Father, who was isolated, had a poor support network, and could not identify anyone whom the DCFS could consider for placement of the children.
The DCFS also assessed the children and their development. Dominic, age 13, presented behavioral problems and was diagnosed with ADHD. He was currently skipping classes at school, and the foster parents had been advised of this. Dominic was aggressive, self-injured, and would benefit from counseling. Dominic also had difficulty with peers and in school. It appeared that Dominic either believed Father's claims of threats, break-ins, and strangers stalking him, or might be using Father's mental health problems to avoid going to school. Christina showed significant delays in development and social skills, had not dealt with the loss of her mother, and the Regional Center had assessed her for possible autism. Christina was withdrawn and afraid of the dark, wet her bed, and did not want to sleep alone. Christina's developmental delays included difficulty with time frames, speech delay, and possible social skills delay.
On December 8, 2008, the principal at the children's elementary school reported that Father appeared at school and wanted to see the children. When father threatened an office employee, the school called the police, who provided a letter to Father that his children were detained and he was not to trespass on school grounds.
Father's two monitored visits at the DCFS office in December 2008 appeared to go well, with Father displaying affection, sharing a meal with the children, and inquiring about their placement. At the end of the visits, Father hugged both children and gave them an allowance. Father, however, had not abided by court orders and had unmonitored phone calls with Dominic, to whom he had given a cell phone and called 12 to 15 times a day, as reported by the foster parent.
After receiving the notice and allegations, Father left a somewhat threatening message for a DCFS staff member on December 8, 2008. He had a history of demonstrating a threatening demeanor.
On February 26, 2009, the DCFS reported that since December 22, 2008, Father appeared daily at the DCFS office and harassed the CSW's with repeated calls, yelling, and threats. The children's school expressed concern that Father's behavior might not be in the children's best interests. Father was under the impression that school staff were trying to poison the children. The children's pediatrician expressed concern that Father was hostile with the physician's staff and acted paranoid. The pediatrician thought Father might not be able to care for the children in his current state.
Dominic and Christine looked forward to visits with Father. In a February 10, 2009, monitored visit, Father brought food to share with the children and engaged them in conversation. Father, however, tried to talk about the case and was hostile with monitors. Father displayed affection with the children, but also voiced paranoid theories that the children were being taken from him and poisoned, and continued to talk about being the victim of identity theft.
On March 16, 2009, the DCFS reported that the children's foster parents had requested the children be removed due to Father's behavior. Father had provided Dominic with two cell phones, which he called repeatedly throughout the day. Father instructed the children to disclose the foster home's location, and warned the children not to leave the residence for any reason. Father had threatened to sue the FFA Agency if his children were placed in therapy, attended church or any church activities, or had any contact with “outside people.” Father stated that he wanted his children to be home at all times and “not outside.” Father threatened the foster parent, who expressed fear because of how Father questioned her. Dominic also exhibited behavior problems, such as spitting out his food onto the floor five times, allowing his pants to fall down, and walking around the foster home without a shirt on.
Father visited his children twice a week at the DCFS office. He brought the children snacks and games, engaged them in conversation, displayed appropriate affection, and behaved appropriately for the most part. He had to be reminded not to discuss the case during visits.
Adjudication and Dispositional Hearing: At the adjudication and dispositional hearing on March 16, 2009, the juvenile court sustained the allegations in the petition that Father had mental and emotional problems which rendered him unable to provide regular care of the children; that on November 17, 2008, Father was involuntarily hospitalized for evaluation and treatment of his psychiatric condition; and that Father's mental and emotional condition endangered the children's physical and emotional health and safety and placed them at risk of physical and emotional harm and damage. The juvenile court adjudicated the matter, found that Dominic and Christine were persons described by section 300, subdivision (b), and declared them dependent children of the court. The juvenile court ordered custody taken from Father and placed with the DCFS. The juvenile court ordered Father, Dominic, and Christine to participate in individual counseling and to participate in conjoint counseling at the therapist's discretion. The juvenile court ordered the DCFS to provide family reunification services to Father, who was ordered to participate in a parent education class. The juvenile court also authorized an Evidence Code section 730 evaluation of Father. Father was ordered to have monitored visitation.
Father filed a timely notice of appeal.
Father claims on appeal that:
1. Substantial evidence did not support the jurisdictional finding pursuant to section 300, subdivision (b); and
2. Clear and convincing evidence did not support the order removing Dominic and Christina from Father's custody.
1. Substantial Evidence Supports the Section 300, Subdivision (b) Jurisdictional
Father claims on appeal that substantial evidence did not support the juvenile court's jurisdictional findings pursuant to section 300, subdivision (b).
a. Section 300, Subdivision (b), and the Standard of Review of Jurisdictional
Section 300, subdivision (b), in relevant part, states that a child who comes within the following description is within the jurisdiction of the juvenile court, which may adjudge that person to be a dependent child of the court: “The 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 willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, 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.”
The statutory definition of jurisdictional requirements in section 300, subdivision (b) consists of three elements: (1) the parent's neglectful conduct in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the child, or a substantial risk of such harm or illness. The third element “ ‘effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]’ “ (In re David M. (2005) 134 Cal.App.4th 822, 829.)
“The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) This court reviews jurisdictional findings according to the substantial evidence test, and thus we review the evidence before the juvenile court in the light most favorable to its order. (In re S.O. (2002) 103 Cal.App.4th 453, 461.)
b. Substantial Evidence Supports the Finding That There Was a Substantial Risk
That the Children Would Suffer Serious Physical Harm or Illness
Father argues there was no evidence the children had suffered physical harm. Section 300, subdivision (b), however, does not require that the children suffered physical harm; the jurisdictional requirement can also be shown by “a substantial risk that the child will suffer, serious physical harm or illness [.]” Father also argues that there was insufficient evidence for the juvenile court to infer that Dominic and Christina were at substantial risk of serious harm in the future. We disagree.
Father's criminal history, drug history, and current abuse of pain killers: Father had a long history of substance abuse, related arrests, and nine convictions on substance abuse-related charges, and was a registered substance abuse offender in 1987 and 1989. Father also had an extensive criminal record, with multiple convictions. Most recently he was convicted of possessing a narcotic controlled substance in 1995 and sentenced to two years in prison. In 2004 he pleaded no contest to child endangerment. The children's maternal aunt stated that Father was a meth addict, had used heroin, and abused pain medicines. Father's mother also said Father was on drugs, and had begun using drugs as a teenager.
Father's previous dependency proceeding: In a previous dependency proceeding due to caretaker absence and incapacity, Dominic and Christine were detained and family reunification services were provided from October 29, 2004, to July 12, 2005. Father had left the children without supervision; Christina was found playing in a motel parking lot unsupervised at 9:30 p.m. and Dominic was found alone in a motel room. Father had previously left the children alone for extended periods without supervision.
Father's mental problems: Father had mental problems that caused him to believe that someone threatened his family and brandished a weapon in front of his home. He also believed people he did not know stalked him, broke into his home and took his possessions, used his credit cards, stole his identity, stole the deed to his house, and changed the names on his will. Father displayed symptoms of paranoia and had mental health issues that needed to be addressed. On October 21, 2008, at Christina's school, Father stated to the principal that there were terrorist threats and someone was trying to abduct his children. On November 17, 2008, Father was reported to have telephoned the school in the morning and told the school secretary he would not send Dominic to school that day because someone might try to poison Dominic. Father also reported that a person shot him on November 15, 2008, tried to poison him on November 16, 2008, and broke into his home and put poison in Father's Diet Coke on November 17, 2008. Father also accused the CSW of taking his children, stealing his identity, and charging his credit card. On February 10, 2009, during a visit, Father was hostile with monitors, and voiced paranoid theories that the children were being taken from him and poisoned, and talked about being the victim of identity theft. Dominic reported that Father did not trust anyone, and had no friends. Father had no contact with his mother or brothers. Sheriff's deputies responded to the home on November 17, 2008, placed Father on a 5150 hold and taken to a mental health hospital. Christina reported that Father (and she) heard voices saying bad words coming from the outside. She said Father had fixed a window so that it would open only a little bit so that no one could get into the home. Father had been charged with assault with a deadly weapon in 1979 and placed in mental health custody in Patton State Hospital until his discharge in 1980. Father denied having mental and emotional problems, and stated he and the children were victims of burglary, terrorist threats, harassment, and identity theft. Although Father admitted that during his recent mental health hospitalization he was diagnosed as bi-polar and schizophrenic, he stated he was neither of those things. Although he was told he was addicted to drugs, he said he was not. He was prescribed Respridol and Motrin, but refused to take either drug. On discharge he was referred to a psychiatrist, but he refused to see a psychiatrist because he was fine.
Father's depriving children of food: When Sheriff's deputies responded to the home on November 17, 2008, they found little food in the home. Dominic reported an instance in which he ate chicken cooked by Father and became ill with a stomach ache and diarrhea.
Father's threats to family members, school and DCFS personnel, and a foster mother: Father appeared at school the day Christina returned to school after an absence of nearly one month. Father spoke with the principal and was rude and arrogant, aggressive in front of Christina, demeaning, threatening, and rude, causing the principal to call school police because of Father's behavior. On December 8, 2008, Father had appeared at school, wanted to see the children, and threatened one of the office staff. On that date Father also left a threatening message for a DCFS staff member. From December 22, 2008, to February 26, 2009, Father went daily to the DCFS office and harassed CSW's with repeated calls, yelling, and threats. The children's pediatrician said Father was hostile with the physician's staff and acted paranoid. Father left threatening messages with the children's maternal aunt, who said Father regularly terrorized her family and frightened her. The maternal aunt said Father coerced Dominic and Christine and had them “medicated.” Father stated that he would take his children back and that the DCFS had no right to detain them, and the DCFS was seriously concerned that Father might abduct the children. In March 2009, the foster parents requested removal of the children in part because Father had threatened the foster parent.
Father's history of drug use, criminal activity (including child endangerment), mental illness and refusal of treatment and medication, threats to family members, school and DCFS personnel, and a foster parent, and the instance in which he had deprived the children of food and had prepared food which caused Dominic to become ill all supported the jurisdictional finding that there was a substantial risk that the children would suffer serious physical harm or illness. We affirm the jurisdictional finding.
2. Substantial Evidence Supported the Finding That Return of the Children to
Father's Custody Would Substantially Endanger the Children's Physical
Health, Safety, Protection, or Physical or Emotional Well-Being
Father claims on appeal that clear and convincing evidence did not support the juvenile court's dispositional finding that return of the children to Father's custody was a substantial danger to the children's health, safety, or emotional well-being.
a. Removal of a Dependent Child From a Parent's Physical Custody, and the
Standard of Review of Such a Dispositional Order
Section 361, subdivision (c) states, in relevant part: “A dependent child may not be taken from the physical custody of his or her parents ․ with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances[:]
“(1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home[.]”
Removing children from the home in which they lived at the time of the petition and awarding custody to a nonparent requires clear and convincing evidence of the requirements in section 361, subdivision (c). This “clear and convincing evidence” burden of proof at the dispositional phase is greater than that required at the jurisdictional phase, which requires a preponderance of the evidence. On appeal, this court reviews dispositional findings and orders according to the substantial evidence test, by which we determine whether the clear and convincing standard of proof was satisfied. (In re Henry V. (2004) 119 Cal.App.4th 522, 528-529.)
b. Substantial Evidence Supported the Dispositional Order
The evidence cited in the previous discussion to support the jurisdictional finding pursuant to section 300, subdivision (b) also constitutes substantial evidence to support the finding that there would be a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being if they were returned to Father's custody. Additional evidence of a substantial danger to the children's emotional well-being if they were returned to Father's custody is that the children's detention occurred because Father kept them out of school and at home for nearly one month. He said he did this because he felt the children were safer at home with him. During the period while the children were not in school, Father was reported to have visited to the children's school to drop off Tylenol for the children's headache. He denied doing this and said that some other person impersonated him. Dominic had missed 27 days of school before November 17, 2008. Substantial evidence supports the finding pursuant to section 361, subdivision (c) in the dispositional order.
The judgment is affirmed.
FN1. Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.. FN1. Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
CROSKEY, Acting P. J. ALDRICH, J.