Filed 2/26/18 In re C.B. CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re C.B., a Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY,

Plaintiff and Respondent,

v.

V.V.,

Defendant and Appellant.



G055442

(Super. Ct. No. 17DP0127)

O P I N I O N

Appeal from orders of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, and Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
* * *
The juvenile court found it had dependency jurisdiction over now 16 1/2-year-old C.S. (child) under Welfare and Institutions Code section 300, subdivisions (b)(1) (failure to protect; section 300(b)(1)) and (c) (serious emotional distress; section 300(c)). It ordered child removed from parental custody under Welfare and Institutions Code section 361, subdivision (c) (section 361(c)).
V.V. (father) argues there was no evidence he failed to protect child or that he had caused her serious emotional damage. He further asserts the evidence shows the child would not be in danger if placed with him.
We conclude there was sufficient evidence to support jurisdiction and the disposition and affirm.
FACTS AND PROCEDURAL HISTORY
Father and L.B. (mother) have four children; child is the oldest. In 2014, two of child’s siblings, then seven and five years old, were present when mother assaulted father. Father obtained a one-year criminal protective order against mother, who was ordered to complete a 12-week anger management class. Father and child’s siblings lived with father’s parents.
A little more than one year later mother attempted to abscond with child’s siblings during a monitored visit. In November 2015, the court issued a five-year criminal protective order against mother protecting father and the children. The order provided mother with monitored visits.
In December 2016, child ran away from home to live with maternal grandfather (grandfather) and maternal aunt (aunt). Father filed a missing person’s report. Child remained with grandfather and aunt for six weeks and did not attend school; no one disclosed child’s whereabouts. On January 31, 2017 child appeared in family court seeking a restraining order against father, claiming he had physically abused her. The court ordered child to be detained.
Child told Orange County Social Services Agency (SSA) father “always” hit her and disciplined her by slapping her in the face. Grandfather stated child was afraid father would do “something to her” if she went to school.
Father denied he physically abused the children. The other children also denied father hit anyone and said they felt safe at home.
Subsequently SSA filed a dependency petition on child’s behalf under section 300(b)(1) alleging father’s physical and verbal abuse; child running away from home; the restraining order against mother based on a history of domestic violence between parents; and the risk mother would abscond with child based on her prior taking of the children. The court ordered child detained in grandfather’s custody. Both parents were given monitored visitation but they could not visit together.
At a team decision making meeting child was emotionally upset, and again stated father had hit her. She said she wanted to live with mother or aunt. Father said he wanted child to come home. He stated there were “issues” when child spoke to mother. He also reported ongoing custody disputes with mother for the past three years. He said child’s allegations about his abuse were false. The social worker reported the allegations of physical abuse were “unfounded.”
Father showed SSA a copy of a five-page handwritten letter (Letter) from child in which she stated father’s actions “hurt to a point where I wanted to kill myself.” In the Letter child accused father of slapping her and said “[r]unning [a]way was the best descision [sic] I made because I’m finally HAPPY to be away from you!” She stated she had told father many times she was unhappy and wanted to be with mother but father ignored her. She stated she was depressed and sad and cried herself to sleep every night when she was living with father because he took mother from her. In the Letter child stated she had not run away to a relative’s house or to her mother. She told father to leave her alone and stated she would not live with him. In large all caps she stated, “I DON’T WANT TO BE WITH YOU!”
Shortly thereafter father told SSA he would “do whatever is necessary for the child” to be returned to his custody. He suggested child receive counseling, especially so she could understand why mother was not around as much as child wanted her to be.
Father stated he had a good relationship with the other three children. He also said child had been depressed because her grandmother had died and because child was not able to visit with mother. The social worker believed child was angry with father due to the protective order against mother and the resulting limited contact between child and mother.
Father enrolled in a parenting class and was set to begin individual therapy.
Child did not want to visit father and she often refused to do so or cut the visits short. Visiting father made her angry. When father tried to interact with child during visits she was hostile or distant. Child told the social worker she was afraid of father. At one visit, when child asked father why he wanted her to return to his custody, he told her it was because he loved her. She replied that he did not.
Child told the social worker she did not like father because sometimes he would “flick her in the face when she did something wrong.” Later he would ask if she was okay. She did not like that behavior. She also said father never listened to her when she tried to explain things to him and did not communicate with her and ignored her. She stated, “It’s too much.” She was angry because father “keeps fighting for me and for no reason.” She explained she was happy living with grandfather and her maternal family, stating they cared more about her than father did. She complained her paternal relatives would not let her speak to her siblings when she telephoned.
The social worker believed child needed individual therapy to deal with her anger toward her father.
As time went on, child’s visits with father lasted only about 15 minutes. She remained angry with him and reiterated she did not want to live with him.
Child was also angry because father had not taken her and her siblings to visit her maternal grandmother, who had primarily raised them. When the maternal grandmother died, father was late and they missed the funeral, attending only the burial. Father also did not take them to the maternal family’s dinner thereafter.
In the next six weeks or so, child refused to visit father, wanting nothing to do with him. When visits resumed they remained truncated and with little interaction between father and child.
Although child continued with individual therapy, her anger issues with father were not resolved and her relationship was not improved. The therapist noted child’s feelings against father were “really strong,” stating child hated father. The therapist was continuing to work with child to resolve this.
Child stated father did not understand how she was affected by the proceedings and was “still . . . trying to get her.” She repeated she was happier with her current placement. The social worker noted child was upset with father for keeping her and her siblings from mother.
Father reported he thought visits with child generally went well, noting child got upset when she did not get her way. During visits father told child he loved and missed her. He was attentive and appropriate toward her. The social worker stated father regularly attended visits, and tried to “bridge the gap” and “be compliant with” child.
At the hearing in July 2013, father, child, and the social worker testified. The social worker testified father was making progress with his therapy, learning to cope with child’s anger, and had completed a parenting class. SSA deemed the allegations of father’s physical abuse unfounded. No one had corroborated the accusations and the other children were not removed from father’s custody. His calling the police when child ran away was responsible.
Child was not ready for conjoint therapy. The social worker recommended child continue with individual therapy and hoped conjoint therapy would be possible later.
The social worker recommended child not be placed with father because of her anger at him. She “shuts down” during visits and does not look at father. She feared child might run away if returned to his custody. Child was upset with father due to the restraining orders again mother. She might have “displaced anger” toward father because of mother’s absence from her life.
Child testified she had lived with father for two years before she ran away. Before then, she had alternated living with father and mother, but with mother about 90 percent of the time. Child stated father was not in her life until she was eight or nine. Mother had done everything for her. Then “all of a sudden” she had to live with father without seeing mother.
Child disliked living with father. She recounted at least one incident where father hit her across her face. She also said she needed clothes for winter because she had outgrown what she had and he kept telling her to wait. When she told him she was depressed, his response was to “stop being depressed.”
She did not like to visit father “[b]ecause it brings up bad things,” because he hit her and because he prevented her from seeing mother. Child also stated father had not allowed her to visit her maternal grandmother, with whom she was very close, or her mother’s side of the family. This made her angry.
Child was depressed when she lived with father and had cut herself, although she had stopped that “a long time ago.” She also felt suicidal when living with her father and cried a lot. She had never had therapy until late 2016. She believed she needed to continue therapy; it helped with her depression.
Although child had wanted to live with mother, she now wanted to stay with grandfather and aunt. She was happier there than with father. Child testified if she was returned to father’s custody she would run away again.
Child cried during portions of her testimony, often to the point where she could not speak.
Father testified child lived with him from when she began kindergarten until she was removed, although she did live with grandmother “off and on.” He denied he had ever abused child physically or verbally. Most of the time child was happy, although he had seen her crying a few times. He also noted she became depressed after her maternal grandmother died.
Child was crying when the court made its ruling from the bench. The court noted that because child had not yet been evaluated it had insufficient information about why she was “so distraught and why you’re crying so much and why you’re depressed.” The judge had seen child display these emotions in the courtroom and was “going to take [child] at [her] word.” The court stated the evidence showed child had been part of “a difficult custody battle,” had lost her maternal grandmother whom she was very close to, and felt she had lost her mother due to custody being awarded to father.
The court sustained the petition as to the count under section 300(b)(1) for failure to protect. The court amended the petition to include that child had run away to secretly live with grandfather and aunt and missed school for a month.
The court also added a count under section 300(c) that child suffers from or is at risk of suffering severe emotional damage as shown by her anger and depression due to the custody battle. As per child’s therapist child remains very angry with father.
The court declared child to be a dependent, removed her from custody of parents and grandfather and aunt, placed child at Orangewood, and ordered monitored visitation for parents.
DISCUSSION
1. Standard of Review
We review jurisdictional findings and disposition orders under the substantial evidence standard. (In re R.T. (2017) 3 Cal.5th 622.) Father has the burden to show the insufficiency of the evidence. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
In determining whether there is substantial evidence, we draw all reasonable inferences in favor of the order. We do not reweigh the evidence or redetermine credibility. (In re R.T., supra, 3 Cal.5th at p. 633.) Nor do we consider contrary evidence even if it might support the opposite result. (In re James R. (2009) 176 Cal.App.4th 135.) “‘The ultimate test is whether it is reasonable for the trier of fact to make the ruling in question in light of the whole record.’” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.)
2. Sufficient Evidence to Support Jurisdiction
Under section 300(b)(1), a court may take dependency jurisdiction over a child who “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.”
Under section 300(c), the court may assume jurisdiction if a child is suffering or at 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.”
Father challenges the sufficiency of the evidence to support either count on the ground he “was a very protective father whose behavior never put [child] at risk.”
He claims there is no evidence he failed to protect or supervise child but instead did what a responsible parent would do when a child ran away, i.e., calling the police, and checking with grandfather and aunt and the school. He cites to the social worker’s testimony his contacting the police was responsible. He further contends there is no evidence child would be at risk to run away again due to his failure to supervise or protect. Rather, he argues, he would be able to handle the situation as well or better than he did the first time, perhaps involving the delinquency court or placement with relatives.
In In re R.T., supra, 3 Cal.5th 622 the mother made the same arguments based on similar facts. In that case, R.T. began running away at age 14 and missing school. She falsely claimed her mother had abused her and had “‘anger management issues.’” (Id. at p. 625.) The juvenile court asserted jurisdiction under section 300 (b)(1), finding her mother could not control her, and removed R.T. from the mother’s custody. The mother appealed claiming there was insufficient evidence to support findings of failure to protect. She maintained “she was not at fault or blameworthy because she did everything possible to control R.T.’s incorrigible behavior.” (Id. at p. 633.)
The court did not disagree, but it noted “mother’s concept of parental fault or blame is viewed from a ‘moral standpoint,’ which does not directly inform whether a parent can provide a child ‘proper care and supervision.’” (In re R.T., supra, 3 Cal.5th at p. 63.) It held “a parent’s conduct—short of actually creating the danger a child faces—may still satisfy the standard required under the first clause of section 300(b)(1).” (Ibid.)
In affirming jurisdiction and disposition R.T. stated, “Whether it was R.T.’s misbehavior and disobedience, or mother’s inability to supervise or protect R.T., that initiated this cyclical pattern of conflict, does not matter here. The basis for jurisdiction under section 300(b)(1) is whether the child is at ‘substantial risk’ of ‘serious physical harm or illness.’” (In re. R.T., supra, 3 Cal.5th at p. 634.)
This governs our case. Here, child was adamant about not living with father and distraught at the possibility, stating she would run away again if returned to father’s custody. The social worker testified this is why she recommended removal from father. As shown in R.T., father’s neglect or misconduct did not have to be the cause of child’s actions. Rather, his inability to prevent it is critical. (In re R.T., supra, 3 Cal.5th at pp. 633, 634.)
Father claims that because when child ran away she lived with relatives, she was never at risk of physical harm or illness. But as SSA points out, there is no guarantee that is where she would go the next time. She was removed from their custody because of their participation in hiding her, so she would be unlikely to return. Child lied about where she went the first time so it is not unreasonable to believe she might be hard to find if she left again, subjecting herself to the risk of serious physical harm.
Father attacks the finding of domestic violence between him and mother. He argues he did all the right things when he obtained the protective orders to keep child safe. Nevertheless father does not contest mother’s history of domestic violence.
“For jurisdictional purposes, it is irrelevant which parent created those circumstances. A jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent, once dependency jurisdiction has been established. [Citation.] As a result, it is commonly said that a jurisdictional finding involving one parent is ‘“good against both. More accurately, the minor is a dependent if the actions of either parent bring [her] within one of the statutory definitions of a dependent.”’” (In re I.A. (2011) 201 Cal.App.4th 1484, 1492.)
Father also disputes the finding mother would abscond with child. He relies on the protective order and the lack of evidence of any current threats or attempts. But the mere fact a protective order is in place does not eliminate the real possibility of abduction. And child was demonstrably upset over loss of contact with mother, which she believed was father’s fault. Even if we were to accept father’s argument on this, it does not change the result due to the other evidence supporting the count.
Father also challenges the factual finding under section 300(c) that child was suffering from serious emotional distress, claiming he was not the cause. He contends his acts in keeping child from contact with mother were “entirely appropriate.”
He also argues child’s anger did not rise “to the level of serous emotional harm or risk of such harm.” She was just “simply angry.” He points to evidence child appeared healthy, was sleeping and eating well, and was working to improve her grades. Additionally, she was in therapy with the therapist’s goal of helping her resolve her anger at father. He concludes child was “doing just fine” in her current placement.
But the record makes clear a substantial cause of child’s emotional distress was being in father’s custody. Child was adamant she did not want to be with him but wanted to live with grandfather and aunt. Thus it makes sense she was doing well in their custody.
Child had not progressed in therapy to resolve her anger and depression. She was more than just “simply angry” as father claims. Child did not even want to visit father and her therapist opined child was not ready for conjoint therapy. During some visits she was “so broken and so upset” she could not even look at father.
Contrary to father’s argument, the issue here is not whether father was incapable or unwilling to provide mental health treatment to child in the future. While mental health treatment for child is necessary, returning child to father’s care poses a serious risk of future harm and would only exacerbate that need.
Father’s claim he was “open to allowing [child] to live with other family members while they worked on their issues,” is not an accurate reflection of the record. He cites one place in the record, where a social worker asked for suggestions for placement “if needed.” He suggested two paternal aunts. This is hardly an offer to let child reside somewhere other than with him.
Father relies heavily on In re Brison C. (2000) 81 Cal.App.4th 1373 (Brison C.) to support his position. In Brison C. the Court of Appeal held there was insufficient evidence to support jurisdiction under section 300(c). (Id. at p. 1376.) There, the child was “caught in the crossfire” of a difficult but nonviolent custody battle. (Ibid.) The child had nightmares and gastrointestinal problems, and was afraid of his father, threatening suicide if required to visit or live with him.
In reversing a finding of jurisdiction the court noted parents agreed to attend counseling and parenting classes and “recognized the inappropriateness of their past behavior.” (Brison C., supra, 81 Cal.App.4th at p. 1381.) The child was performing well in school, was physically healthy, and was happy to see his mother. Additionally, he had adapted to foster care. The court found the child’s “aversion to his father” did not “inherently prove serious emotional disturbance.” (Id. at p. 1380.)
Father argues the facts in our case are “almost identical,” claiming child was healthy, had adapted to foster care and did not have ongoing behavioral problems. She was working hard in school and had a loving relationship with grandfather and aunt. Her only problem was her anger toward her father, which he asserts is “understandable” due to the custody battle, “even if [his] actions were in [child’s] best interests.”
We disagree with father’s conclusion. First, another panel in our division has “question[ed] the soundness” of Brison C.’s finding the child had no serious emotional damage. (In re A.J. (2011) 197 Cal.App.4th 1095, 1105-1106.)
Second, the facts of our case are not comparable. Child did display “serious behavioral problems” (Brison C., supra, 81 Cal.App.4th at p. 1376), including cutting and running away from home. These abated when child was removed from father’s custody. That is why she was adapting to her placement and doing well in school. But child could not even look at father during the visits she attended. Further, Brison C. described the child as “remarkably resilient” (id. at p. 1380) and otherwise reasonably well-adjusted (id. at p. 1377), not the case here. And, contrary to Brison C., the court here did not rely on psychological evaluations that were “years out of date.” (Id. at p. 1380.) Rather, in addition to hearing the evidence of child’s depression and anger, the court witnessed the child’s severe emotional distress firsthand and took her at her word. We will not reweigh the court’s finding of the child’s credibility.
In sum, there is sufficient evidence to support the court’s finding of jurisdiction under either section 300(b)(1) and 300(c). (In re Drake M. (2012) 211 Cal.App.4th 754, 762 [we may affirm jurisdiction on any of the statutory bases underlying petition].)
3. Sufficient Evidence to Support Disposition
Under section 361(c)(1), to remove a child from a parent’s physical custody, the court must find clear and convincing evidence there is substantial danger to the child’s safety or well-being that cannot be overcome without such removal.
Removal is also authorized under section 361(c)(3) where clear and convincing evidence shows the “minor is suffering severe emotional damage,” evidenced by “extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others,” and there is no reasonable way to protect the child’s emotional health short of removal.
The court has “‘“broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accordance with this discretion. [Citations.]”’” (In re Korbin Z. (2016) 3 Cal.App.5th 511, 518.) “In deciding whether to remove a child from home, the child’s best interests are paramount.” (In re N.M. (2011) 197 Cal.App.4th 159, 171.)
In challenging the disposition, father relies on essentially the same evidence and arguments raised in opposition to jurisdiction, which do not need repeating. The same evidence supporting jurisdiction supports the disposition.
We disagree with father’s claim child was not at risk at the time of the disposition hearing. The restraining orders against mother did not address child’s emotional trauma resulting from living with father. And although she was participating in therapy, child had not resolved her anger toward and bad memories of father. Contrary to father’s claim, child was in therapy for more than resolution of “hurt feelings.” As her therapist reported, child hated father and was not even ready for conjoint therapy.
Nor are we persuaded by father’s proposed “less drastic alternatives,” i.e., either not declaring dependency leaving child in his custody, and ordering services and SSA supervision (Welf. & Inst. Code, § 360, subd. (b)); or declaring dependency, leaving child in his custody and ordering services (Welf. & Inst. Code, § 361; Cal. Rules of Court, rule 5.695(a)(5)). But again, the problem is child residing with father, notwithstanding father’s motivation to resolve the situation.
In re Steve W. (1990) 217 Cal.App.3d 10, on which father relies, is not helpful to his cause. In that case the child was detained after the child’s father/the mother’s boyfriend beat the child’s half-brother to death. The court held returning the child to the mother would not subject him to the risk of physical harm because the father was in prison. (Id. at p. 22.) The court stated the mother had generally acted appropriately when the father had harmed the half-brother. The evidence was insufficient the mother would enter a relationship with another abusive man, especially if she was subject to supervision. (Id. at pp. 22-23.)
Father argues child here is not subject to risk of harm from mother due to the restraining order, monitored visits and, full custody vested in him. Again, as we have said, this is not the issue. That father and child are both participating in individual therapy does not suffice; that has not yet resolved the issue of child’s severe emotional damage. Nor would supervision or monitoring help. And again, while father’s cooperation and compliance are laudable, the problem remains. Child’s severe emotional harm is caused by living with father, the very thing he seeks to accomplish.
Removing child from father’s custody was a proper exercise of discretion.

DISPOSITION
The orders are affirmed.


THOMPSON, J.

WE CONCUR:



FYBEL, ACTING P. J.



IKOLA, J.