IN RE: Ashley T. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Rhonda A. (Mother), mother of 13-year old Ashley T., appeals the juvenile court's jurisdictional order.   Mother contends that the factual allegation sustained by the court-that “an ongoing conflict between, [Ashley's] parents ․ caused Ashley ․ emotional suffering”-was insufficient to support assertion of dependency jurisdiction and that the finding itself was not supported by substantial evidence.   We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Thomas T., Ashley's father (Father), were married in 1989.¹  They had two children, Eric T., now an adult, and Ashley.   In 2003, they divorced after two years of separation.   Mother blamed their marital problems on Father's drug addiction.²  Mother was given primary custody of the children;  Father was ordered to pay child support.   In 2005, Mother married Rogelio A.

In May 2008, a family law court issued a two-year restraining order, apparently requested by Eric, restraining Father from coming into contact with Eric, Ashley or Mother, except when necessary for court-ordered visitation with Ashley.

Ashley was detained on November 20, 2008.   The day before, she had been suspended from school for setting off a fire alarm.   On the morning of November 20, afraid to tell Mother or Rogelio of her suspension, she left the house as usual, planning to spend time at various fast food restaurants until it was time for her after school activities.   She left a lengthy letter for her mother explaining the situation and promising that she would “ground [her]self” when she returned home.   The letter indicated that Ashley anticipated Mother “yell [ing] at [her] on the phone and in the car,” but not any physical punishment.   Later that day, Ashley was picked up by Rogelio.   However, she ran away from him and was taken home by Father, who called the Department of Children and Family Services (DCFS).³  Interviewed at Father's home, Ashley claimed that when Rogelio picked her up, he drove her to a job site and asked her to crawl under a house to turn off a gas valve.   When she was unable to get under the house, he “pushed her with his foot.”   Ashley later reported that sometime in the past, Mother had struck her in the mouth.   Ashley said she was afraid of Mother and Rogelio and afraid to go home.   Mother and Rogelio denied ever hitting or kicking Ashley and informed the caseworker of the restraining order against Father.   However, because Ashley cried and became “hysterical” at the prospect of returning home, the caseworker detained her with Father.⁴

The petition, filed November 25, 2008, alleged that jurisdiction was appropriate under Welfare and Institutions Code section 300, subdivision (a) (serious physical harm) and (b) (failure to protect) due to physical abuse of Ashley by Mother and Rogelio.⁵  During the period between detention and disposition, Mother had virtually no visitation with Ashley.⁶

The caseworker conducted further interviews in connection with the January 2009 jurisdiction/disposition report.   Ashley stated that Mother frequently abused her, striking her in the mouth and arms and digging her nails into Ashley's wrists.   With respect to Rogelio, Ashley now claimed that on the day of her suspension, he had kicked her in the back in order to force her into his truck.   Mother and Rogelio continued to deny hitting or kicking Ashley.   Mother said that the only physical discipline she ever imposed was spanking.   Rogelio expressed the view that Ashley was being “brain wash[ed]” by Father, who wanted out of his child support obligation.   Eric stated that he had never seen Mother or Rogelio abuse Ashley.   Eric also reported that Mother never struck him, but that when Mother and Father were together, Father had beaten him and Mother.   Eric believed that Ashley had lied about being abused because she did not like the rules imposed at home and wanted to live with Father.   Ashley's adult step-brother, Rogelio A. III, who lived with the family, denied observing Mother or Rogelio abuse Ashley, and stated that in his experience growing up, Rogelio's practice was to impose non-physical discipline.   The step-brother also expressed the belief that Ashley was not a truthful person.

In the assessment/evaluation portion of the jurisdiction/disposition report, the caseworker expressed skepticism concerning the allegations of physical abuse and doubt concerning Ashley's credibility.   The caseworker concluded, however, that jurisdiction was appropriate under a new theory:  “[I]t is clear that [M]other and [F]ather have a contentious relationship, at best, given their history of marital discord.   Mother and [F]ather have not demonstrated that they are able to communicate for the purpose of co-parenting Ashley.   This situation in and of itself is emotionally detrimental to Ashley, as she has stated that she has grown weary of having to be the liaison between [M]other and [F]ather because they cannot communicate peacefully with one another.   It would therefore be in Ashley's best interest if [M]other and [F]ather participate in Parents Beyond Conflict as they will remain connected through their daughter and will not [ ] be able to avoid contact with one another.   Both [M]other and [F]ather must ultimately put aside their history with one another and look towards what will be in Ashley's best interest long term.”   Based on this conclusion, the caseworker recommended that Ashley be declared a dependent of the juvenile court, detained from Mother and placed in the care of Father.

At the February 2009 jurisdictional hearing, the court dismissed the allegations concerning physical abuse, stating that DCFS had “not met its burden with respect to the incidents of physical abuse.”   The parties had apparently had an off-the-record discussion with the court concerning the petition's allegations, and none of the the parties objected to dismissal of these allegations.   Counsel for DCFS and Ashley asked the court to “amend the allegations to conform to proof” in accordance with the off-the-record discussion.   Father's counsel argued there was no evidence of a parental conflict causing emotional harm to Ashley.   Mother's counsel agreed and asked the court to dismiss the petition.

The court made the following finding:  “There is an ongoing conflict between, [Ashley's] parents ․ which has caused Ashley to suffer emotional suffering.   Her parents' conflict has caused Ashley to be conflicted in her loyalty between the two households, [and] caused conflict between Ashley, her siblings, her stepfather and her parents.   This conflict creates a detrimental home environment and places the child at risk of further emotional harm and damage.”   The court stated that the existence of parental conflict was evidenced by “the numerous referrals that have been found to be unfounded” and “the numerous restraining orders.”   The court further stated that the conflict was “detrimental” to Ashley and that Ashley was “not in a secure, emotional environment,” which caused her to suffer “emotional harm and damage.”

At the April 2009 dispositional hearing, the court ordered Mother to enroll in a parent education class and to participate in conjoint counseling with Ashley when Ashley's therapist deemed it appropriate.⁷

DISCUSSION

In order to assert jurisdiction over a minor, the juvenile court must find that he or she falls within one or more of the categories specified in section 300.  (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)   DCFS bears the burden of proving by a preponderance of the evidence that the minor comes under the juvenile court's jurisdiction.  (Ibid.;  In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)   On appeal from a jurisdictional order, “we must uphold the court's findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings.”  (In re Veronica G., supra, 157 Cal.App.4th at p. 185.)

The court's minute order stated that jurisdiction was appropriate under section 300, subdivision (b).⁸  Subdivision (b) permits assertion of jurisdiction when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, 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 or guardian to provide regular care for the child due to parent's or guardian's mental illness, developmental disability, or substance abuse.”  (Italics added.)   As the court found that the allegations of physical abuse were unsubstantiated, we presume the reference to subdivision (b) represents a clerical error and that the court intended to specify section 300, subdivision (c), the provision that appears to be more applicable to the court's finding of emotional detriment based on parental conflict.⁹  (See discussion in In re Brison C. (2000) 81 Cal.App.4th 1373, 1379-1382.)

Section 300, subdivision (c) permits the assertion of jurisdiction over a minor where “[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․”  To prove that a minor comes within this statutory definition of a dependent child, DCFS bears the burden of establishing the following three elements:  “(1) serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior or a substantial risk of severe emotional harm if jurisdiction is not assumed;  (2) offending parental conduct;  and (3) causation.”  (In re Brison C., supra, 81 Cal.App.4th at p. 1379.)   Under this standard, the court's jurisdictional order was not supported for multiple reasons.

First, DCFS did not allege and the court did not find “serious emotional damage” as required by section 300, subdivision (c).  In accordance with the amended allegation, the court found only that there was “emotional suffering” due to “an ongoing conflict” and that Ashley was “conflicted in her loyalty.”   Mother's contention that the finding itself does not support jurisdiction is, therefore, sound.¹⁰

Second, to the extent the court intended to equate “emotional suffering” with “serious emotional damage,” the record lacks evidence of behavior that meets the statutory definition-“severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others.”   Ashley expressed fear and anxiety about returning to Mother and Rogelio's home, but such emotions are not necessarily supportive of dependency jurisdiction.  (See In re Brison C., supra, 81 Cal.App.4th at p. 1380.)   In Brison C., the minor's expressed dislike and fear of his father was based on his father's past abuse.   The court concluded that the aversion “does not inherently prove serious emotional disturbance or unhealthy parental alienation” sufficient to support jurisdiction;  it “may simply reflect ․ a self-protective and healthy desire to avoid his [father's] company.”  (81 Cal.App.4th at p. 1380;  compare In re Anne P. (1988) 199 Cal.App.3d 183, 190-192 [due to mother's attempt to convince minor she had been abused by father in order to gain advantage in custody dispute, minor had developed “near pathological fear of men,” was “in danger of losing complete control” and suffered “ ‘severe psychological disturbance’ ”].)   Here, the court found that the allegations of physical abuse were untrue.   Accordingly, the more reasonable inference is that Ashley's alleged fear and anxiety were the result of her natural concern over the sanctions likely to result from her misbehavior at school, her suspension, and her disappearance for a day.

Third, the evidence did not support the court's finding that there was an “ongoing conflict” between Mother and Father at the time of the detention that caused Ashley serious emotional damage.   There is nothing in the record to indicate that any anxiety-inducing conflict between Mother and Father-or any contact whatsoever-took place in the period predating the detention.   A restraining order to protect Eric, Ashley and Mother had been issued six months earlier in May 2008, but the only evidence in the record to indicate what precipitated its issuance was the April referral to DCFS alleging that Father had abused Eric. There was no evidence in the record of any violation of the order or even of interaction between Mother and Father after the date of the order.   Although the caseworker stated that Ashley was “weary of having to be the liaison between [M]other and [F]ather because they cannot communicate peacefully with one another,” she did not detail any obligations placed on Ashley as a result of this alleged failure or explain how it had precipitated Ashley's emotional disturbance.   The only acute emotional distress exhibited by Ashley occurred on the night of November 20, when the caseworker mentioned returning her home.   Accepting, as we must, the court's finding that Ashley's allegations of past physical abuse were unfounded, the reasonable conclusion from the evidence presented was that Ashley's fear and anxiety were precipitated by her own misbehavior and her concern over the punishment Mother and Rogelio might mete out once they became aware of it.

In In re John W. (1996) 41 Cal.App.4th 961, the court made clear that the family law court is better suited to handling issues relating to custody and visitation, emphasizing the unfairness to divorced or divorcing parents of using the juvenile dependency system to litigate family law custody battles:  “[A] litigant may be unfairly prejudiced in a custody fight when the battlefield is shifted to the juvenile courts.   At that point he or she faces not only an embittered ex-spouse, but a government adversary paid at public expense.”  (Id. at p. 975.)   The court warned that intervention in contentious divorce situations “should be extremely rare” lest “unsubstantiated allegations of monstrous behavior ․ becom[e] a means of leverage in a custody fight, or a ticket to free legal services and psychotherapy.”  (Id. at pp. 975-976.)   The evidence does not demonstrate that the present situation is one of those rare occasions when intense conflict between the parents justified imposition of dependency jurisdiction.

DISPOSITION

The court's jurisdiction order is reversed.   The dispositional order and all subsequent orders are moot.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Father is not a party to this appeal..  FN1. Father is not a party to this appeal.

FN2. Father admitted “on and off” use of crystal meth for 12 years.   He claimed to have been drug free since 2007.   There was a restraining order against Father in effect in 2001, after Mother and Father separated..  FN2. Father admitted “on and off” use of crystal meth for 12 years.   He claimed to have been drug free since 2007.   There was a restraining order against Father in effect in 2001, after Mother and Father separated.

FN3. According to DCFS records, there were referrals alleging abuse of Ashley by Mother and/or Rogelio in October 2001, March 2004, April 2008 and July 2008.   Generally, the identity of those who call the DCFS hotline to make referrals is not reported, but it is clear that at least two of these referrals were called in by Father.   With respect to the July 2008 referral, Father called the DCFS hotline back after accusing Rogelio of abusing Ashley and admitted he had fabricated the allegations because he was mad and wanted to “make trouble” for Rogelio.   There were also referrals alleging abuse of Eric on the part of Father in April 1989 and April 2008.   All of these prior referrals were investigated and deemed to be “unfounded.”.  FN3. According to DCFS records, there were referrals alleging abuse of Ashley by Mother and/or Rogelio in October 2001, March 2004, April 2008 and July 2008.   Generally, the identity of those who call the DCFS hotline to make referrals is not reported, but it is clear that at least two of these referrals were called in by Father.   With respect to the July 2008 referral, Father called the DCFS hotline back after accusing Rogelio of abusing Ashley and admitted he had fabricated the allegations because he was mad and wanted to “make trouble” for Rogelio.   There were also referrals alleging abuse of Eric on the part of Father in April 1989 and April 2008.   All of these prior referrals were investigated and deemed to be “unfounded.”

FN4. On November 24, 2008, Ashley, assisted by Father, obtained a temporary restraining order prohibiting Rogelio from contacting or approaching Ashley.   To support issuance of the order, Ashley alleged that she was afraid that if she returned to Mother and Rogelio's home “they w [ould] beat me or do something terrible to me” and that if they saw her on the street “the[y] would scream and yell at me and might try to hurt me.”.  FN4. On November 24, 2008, Ashley, assisted by Father, obtained a temporary restraining order prohibiting Rogelio from contacting or approaching Ashley.   To support issuance of the order, Ashley alleged that she was afraid that if she returned to Mother and Rogelio's home “they w [ould] beat me or do something terrible to me” and that if they saw her on the street “the[y] would scream and yell at me and might try to hurt me.”

FN5. Statutory references are to the Welfare and Institutions Code..  FN5. Statutory references are to the Welfare and Institutions Code.

FN6. A monitored visit occurred on November 26, 2008, after which Ashley complained that Mother had attempted to discuss the case with her.   At a January 2009 hearing, Mother's counsel reported that she had had only two visits with Ashley.   At the April 2009 disposition, Mother's counsel reported she had had a total of three visits since the detention..  FN6. A monitored visit occurred on November 26, 2008, after which Ashley complained that Mother had attempted to discuss the case with her.   At a January 2009 hearing, Mother's counsel reported that she had had only two visits with Ashley.   At the April 2009 disposition, Mother's counsel reported she had had a total of three visits since the detention.

FN7. Ashley began to see a counselor sometime prior to February 19, 2009, but the therapist issued no statement or report prior to the jurisdictional hearing.   In April 2009, the therapist reported that Ashley “does not have anything positive to say about [Mother]” and “needs a break from [Mother] for a while,” but did not specifically address Ashley's mental or emotional state..  FN7. Ashley began to see a counselor sometime prior to February 19, 2009, but the therapist issued no statement or report prior to the jurisdictional hearing.   In April 2009, the therapist reported that Ashley “does not have anything positive to say about [Mother]” and “needs a break from [Mother] for a while,” but did not specifically address Ashley's mental or emotional state.

FN8. At the hearing, the court stated only that jurisdiction was appropriate under “[Section] 300.”.  FN8. At the hearing, the court stated only that jurisdiction was appropriate under “[Section] 300.”

FN9. Respondent contends that Mother and Father's “inability to adequately supervise Ashley” was “evinced by her suspension from school and subsequent roaming of the neighborhood” and that Ashley's unretracted allegations of physical abuse and aversion to visits with Mother was proof that the abuse occurred.   The court made no finding that Ashley's misbehavior on November 19 and 20 was caused by either parent's failure to supervise and dismissed the allegations of physical abuse, finding that DCFS had not met its burden of proof..  FN9. Respondent contends that Mother and Father's “inability to adequately supervise Ashley” was “evinced by her suspension from school and subsequent roaming of the neighborhood” and that Ashley's unretracted allegations of physical abuse and aversion to visits with Mother was proof that the abuse occurred.   The court made no finding that Ashley's misbehavior on November 19 and 20 was caused by either parent's failure to supervise and dismissed the allegations of physical abuse, finding that DCFS had not met its burden of proof.

FN10. Respondent contends that Mother forfeited this contention because she failed to bring a “motion ‘akin to a demurrer’ ” to contest the allegation.  (See In re Jessica C. (2001) 93 Cal.App.4th 1027, 1036.)   We need not consider whether and when a parent who fails to contest an inadequate allegation may be deemed to have forfeited an appellate challenge.   Here, the petition was amended to conform to proof on the day of the jurisdictional hearing.   As Mother had no earlier opportunity to demur or move to dismiss the allegation, her counsel's request on the record at the hearing that the amended petition be dismissed was sufficient to preserve this issue for appeal..  FN10. Respondent contends that Mother forfeited this contention because she failed to bring a “motion ‘akin to a demurrer’ ” to contest the allegation.  (See In re Jessica C. (2001) 93 Cal.App.4th 1027, 1036.)   We need not consider whether and when a parent who fails to contest an inadequate allegation may be deemed to have forfeited an appellate challenge.   Here, the petition was amended to conform to proof on the day of the jurisdictional hearing.   As Mother had no earlier opportunity to demur or move to dismiss the allegation, her counsel's request on the record at the hearing that the amended petition be dismissed was sufficient to preserve this issue for appeal.

WILLHITE, Acting P. J. SUZUKAWA, J.