Filed 8/20/18 In re Kayla G. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Robin R. Kesler, Juvenile Court Referee. Affirmed.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary Wickham, County Counsel, R. Keith Davis, Assistant County Counsel and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.

_________________________________

Appellant Ariel G. [Father], father of Kayla and K.G., appeals the juvenile court’s July 2017 jurisdictional and dispositional orders. Father does not dispute the factual findings made by the court, including findings that he physically abused both his daughters and inappropriately touched Kayla, but contends that because the incidents occurred years in the past and he no longer has contact with the children, the sustained factual allegations did not support assertion of jurisdiction in 2017. He further contends the court erred in “removing” the children from his custody, as he did not have physical custody at the time of the jurisdictional hearing. We find jurisdiction supported by the factual findings, and that any error in removing the children from Father was harmless. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND[1]

The underlying case began in April 2016. The Los Angeles County Department of Children and Family Services (DCFS) received a referral indicating that Kayla, then 15, had just disclosed that in 2014, Father had gotten into bed with her and touched her on her breasts, vagina and buttocks, and promised to buy her a computer if she kept silent about it. At the time of the referral, Mother and Father had been separated for nearly two years and were in the process of divorcing. Mother had physical custody of the children, although there had been no formal custody order issued. The inappropriate touching had occurred shortly after the separation, when Mother had been hospitalized on a hold under Welfare and Institutions Code section 5150.[2]

At the time of the referral, Mother and the girls were in therapy, and the girls had just concluded conjoint therapy with Father ordered by the family court. Per family court order, the girls’ visitation with Father was monitored. Father’s last monitored visit had been in August 2015 because the girls had refused to visit with him after that date. The only recent contact had been during the joint therapy sessions, which ended in April 2016, after Kayla reported the 2014 inappropriate touching incident.

Interviewed by the caseworker, Kayla confirmed the 2014 incident, and further reported that Father had, on occasion, smacked her buttocks and grabbed her breasts when hugging her from behind. Kayla also said Father would “hit her with anything he [could] get his hand to,” and that she had witnessed him hitting Mother when they were together. In addition, Kayla stated that Father had called her names (“dumb, stupid and retarded”) and deliberately killed family pets -- a dog by running it over and multiple fish by taking them out of their tank and leaving them to die.

K.G., then 10, told the caseworker that when her parents were together, Father hit her “for anything” when Mother was not present. She also reported witnessing physical violence inflicted on Mother by Father and related the same accounts as Kayla with regard to Father’s killing family pets. She said Father called her “stupid” and “dumb” and cursed at her. Although K.G. denied sexual abuse, she said Father would sometimes ask her to bring him a towel when he was showering and she would see him naked. Both Kayla and K.G. reported being afraid of Father and wanting no contact with him.

The caseworker did not complete her investigation -- which included interviewing Mother’s and the children’s family law attorneys and therapists and obtaining a forensic interview of the girls -- until July 2016.[3] The girls gave the same accounts of inappropriate touching, physical and emotional abuse, and domestic violence to the forensic examiner as they had to the caseworker. Kayla further reported to the examiner that Father used to bump her with his car to scare her, and had both touched her thigh in a way that made her uncomfortable and slapped it hard enough to leave a mark. She said that the past domestic violence between her parents included Father’s choking Mother while she was lying on the floor and slapping her. K.G. reported to the examiner that Kayla tried to protect her from Father and would take the blame for some transgressions so Father would not hit K.G. She also said she told no one about the abuse because she was afraid Father would hit her again. Both girls expressed the opinion that Father had not taken the conjoint therapy seriously or been honest during the sessions, and said that he had given them “scary” looks during the sessions. They found the conjoint therapist, appointed at the recommendation of Father’s counsel, unsupportive.

The girls’ therapist confirmed that Kayla had recently reported the 2014 inappropriate touching incident and that both girls had reported being physically abused by Father in the past, when the family was together. The therapist believed the children and did not think they were being coached. She diagnosed Kayla as suffering from depression, but had not yet observed signs of depression in K.G. Mother’s therapist, who had conducted some sessions with the girls prior to their obtaining a therapist of their own, stated that they were “terrified” of Father and did not trust him, and that the conjoint therapy sessions ordered by the family court were “‘a nightmare to them.’”

In June 2015, Mother had obtained a restraining order that expired in June 2016. It was obtained following a series of incidents in which Father had approached the girls at their school, frightening them, and was also based on the abuse Mother and the girls had suffered during the years the family was together. Mother’s declaration in support of the restraining order included a report that after the separation, the children “confronted” Father and had him sign a pledge that the physical abuse would stop. It did not stop, however, and was the cause of the girls’ refusal to see Father after the separation.[4] Interviewed by police officers in April 2015, Mother and the girls informed them of multiple incidents of physical abuse Father had inflicted on them when the family was living together. Kayla told the officers that the physical abuse had begun when she was four, and that she had not realized it was wrong for Father to regularly hit her. DCFS investigated the allegations in 2015, but concluded no action was needed because the alleged abuse occurred when Father was living in the home, and the family court had already forbidden Father to have unsupervised access to the children. The 2015 DCFS investigation had also concluded that Mother, by securing the restraining order, “ha[d] taken appropriate steps to keep herself and the children[] safe and away from [Father].”

The underlying petition was filed in October 2016. At that time, the court detained the children from Father under section 245.5 and released them to Mother.[5] The court ordered no visitation for Father until the matter could be adjudicated. Between October 2016 and July 2017, the court issued a series of temporary restraining orders protecting Mother and the girls from contact with Father.

Interviewed again in November 2016, at the time of the jurisdictional report, the children continued to express fear of Father, angry that he had never acknowledged his treatment of them, and concern that he might wrest custody of them from Mother. The caseworker expressed the opinion that the children “were at a high risk of ongoing emotional abuse, physical abuse and sexual abuse by . . . [Father].” The report summarized the family’s situation as follows: “[T]he parents continue to have unresolved custody issues, unresolved marital/family law matters and . . . [Father] continues to be in complete denial of the case related issues. The parents[’] unresolved family law issues, their lack of effective communication, [Father’s] denial of the role he plays in the family dysfunction, and all other unresolved case issues continue to place the children at high risk of ongoing abuse and neglect. [¶] Even though the department does not disregard [Mother’s] failure to protect the children, as of the completion of this report there are no indicators that [Mother] has allowed [Father] to have current access to the children. [Mother] continues to be appropriate in ensuring the children’s safety and ensuring that [the] children are receiving counseling services to address case related issues. In addition, [Mother] reports that since the last hearing [Father] has not violated the restraining order in that he has not attempted to contact her or the children, however, and she stated that she will contact law enforce[ment] if [Father] attempts to contact her or the children. The department intends to refer [Mother] and [the children] for Family Preservation Services. [¶] As of this . . . report[,] the parents have not made sufficient progress in treatment(s) to mitigate the risk factor to date and DCFS and court intervention appears to be appropriate and in the best interest of the children. This family needs ongoing healing, [Father] needs to recognize his role in the family issues, he needs to attempt to restore his relationship with his children, and the children need to [restore] their sense of security.”

The court’s jurisdictional findings were delayed until completion of an evaluation of the parents and children in July 2017 under Evidence Code section 730. Kayla told the evaluator that she had felt “hopeless” in the past because “nobody was believing me,” and that she had experienced poor sleep and concentration during the period of monitored visitation with Father. K.G. said seeing Father caused her to have “panic attacks,” including the inability to breath or move. Both reported constant physical abuse by Father from the time they were four or five. The evaluator left to the court to decide “the veracity of the claims of abuse and the extent of such abuse,” but stated that if the allegations were found true they represented evidence that Father suffered from antisocial personality disorder and narcissistic personality disorder. The evaluator found that Mother met the criteria for unspecified depressive disorder and unspecified anxiety disorder. The girls also met the criteria for unspecified depressive disorder and unspecified anxiety disorder. The family was said to be “[d]isrupt[ed] . . . by [s]eparation or [d]ivorce and [h]igh [e]xpressed [e]motion [l]evel [w]ithin [f]amily,” and to suffer from “[p]arent-[c]hild relational problems” and “[c]hild[ren] affected by [p]arental [r]elationship [d]istress.” The evaluator recommended psychotherapy for all members of the family and conjoint therapy between the children and each of their parents separately. The likelihood of future physical abuse by Father was deemed “moderate,” unless the court found true “the disputed history of extensive and extreme physical and sexual abuse,” in which case “the risk of future abuse [was] considerably higher.” The evaluator believed contact between Father and the girls should be for a time limited to conjoint therapy.

Kayla and K.G. testified at the jurisdictional hearing in chambers and repeated their previous accounts of abuse. The court asked the girls what could be done to make them feel comfortable about seeing Father. Both said “nothing.” Father also testified at the hearing. As he had throughout the proceedings, he denied ever hitting Mother or the children and denied the 2014 inappropriate touching incident.

The court found the following factual allegations true: (1) “[o]n prior occasions,” Father sexually abused Kayla “by fondling [her] breasts and buttocks . . . [and her] thigh,” and Father “instructed [Kayla] not to disclose [his] sexual abuse”; (2) “[o]n prior occasions,” Father physically abused Kayla by striking her arms, buttocks and thighs with belts, pencils and his hands, striking her legs, arms and head with sticks, striking her thigh with his hand, striking her head with his knuckles, and grabbing her hair; (3) “[o]n prior occasions,” Father physically abused K.G. by striking her body with belts, sandals, kitchen objects, rulers and his hands and fists, striking her head with his knuckles, her buttocks and arms with belts and sandals, and slapping her head; (4) “[o]n a prior occasion,” Father struck Mother’s arm and face and placed her in a choke hold; and (5) the parents’ conduct during the dissolution proceeding, Father’s “physical and sexual conduct,” and Mother’s “mental health issues” had “alienated the children from [Father], causing the children severe fear, distress, anxiety [and] depression.” The court found that Mother was aware of Father’s physical abuse of the children, but not the sexual touching. It specifically found that all of the sustained facts “endanger[] the [children’s] physical health and safety,” and “place[] the [children] . . . at risk of serious physical harm, damage, danger,” and physical or sexual abuse. The court concluded that the first four findings supported jurisdiction under subdivision (b) of section 300 (failure to protect); the fifth finding supported jurisdiction under subdivision (c) (emotional abuse), the first finding supported jurisdiction under subdivision (d) (sexual abuse), and the first, second and third findings supported jurisdiction under subdivision (j) (abuse of sibling).[6] The court further found that there would be “substantial danger” to the children if they were returned to the physical custody of Father, and that there was no reasonable means of protecting them absent removal from Father’s care. The court instructed Father to undergo substance testing and to participate in an anger management program, parenting classes, and sexual abuse counseling for perpetrators. It provided Father one brief monitored visit per week. Father appealed.

DISCUSSION

A. Jurisdiction

Father contends the juvenile court erred in asserting jurisdiction over Kayla and K.G. because the incidents on which jurisdiction was based occurred before he moved out of the family home in June 2014, and he had since ceased all contact with his daughters except in the context of conjoint therapy sessions. Under these facts, Father asserts there is no substantial evidence of current risk of harm. For the reasons discussed below, we disagree.

The court based jurisdiction primarily on section 300, subdivision (b). A child may be adjudged a dependent of the court under subdivision (b) of section 300 if 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 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 inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness.” (§ 300, subd. (b)(1).) A true finding under this subdivision requires evidence of “‘“serious physical harm or illness”’” to the child, or “‘“a ‘substantial risk’ of such harm or illness.”’ [Citations.]” (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) Proof of this element “‘“effectively requires a showing that at the time of the jurisdictional 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).”’” (Ibid., quoting In re B.T. (2011) 193 Cal.App.4th 685, 692.) Evidence of past conduct may be probative of current conditions. (In re D.L., supra, at p. 1146, accord, In re James R. (2009) 176 Cal.App.4th 129, 135-136, disapproved in part on another ground in In re R.T. (20017) 3 Cal.5th 622.) To establish a defined risk of harm at the time of the hearing, there “‘must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]’” (In re D.L., supra, at p. 1146, quoting In re James R., supra, at p. 136.)

The evidence established that Father physically and emotionally abused Kayla and K.G. over a period of years, beginning when they were four or five. There was evidence that the abuse continued after Father and Mother separated in 2014, as it formed part of the basis for the 2015 restraining order and the girls’ refusal to see Father outside the context of joint therapy. The 730 evaluator opined that crediting Mother’s and the girls’ allegations of physical, emotional and sexual abuse -- which the court did -- Father suffered from antisocial and narcissistic personality disorder, raising the likelihood of future physical abuse by Father from “moderate” to “considerably higher.” The caseworker also opined that the children were at high risk of ongoing emotional, physical and sexual abuse from Father. This was sufficient to support the court’s assertion of jurisdiction under subdivision (b).

While there was no evidence Father had abused the girls after 2015, this was due not to a change in his attitude or mental state, but to multiple court orders forbidding him from contacting the girls. The family court had made an unsuccessful effort to address the family’s dysfunction through court-ordered therapy and was unlikely to do more. Its restraining order expired in 2016, and Mother might have been unwilling or unable to renew it on her own. The court’s assertion of dependency jurisdiction paved the way for the court to provide long-term protection for these two vulnerable children not available in family court or through Mother’s efforts at self-help.

Moreover, one of the initial purposes behind the assertion of dependency jurisdiction is “‘family preservation.’” (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 69.) Efforts to reunify a family “must be made, in spite of difficulties in doing so or the prospects of success.” (Id. at p. 69, italics added.) On appeal, Father does not dispute the court’s factual findings that his relationship with his daughters was abusive and dysfunctional. Nor does he dispute that his daughters have been psychologically damaged and suffer from depression and anxiety. Father suggests nothing to improve their situation other than a permanent restraining order keeping him from seeing his family or his voluntary estrangement. As Kayla and K.G. have made clear, Father’s acknowledgment of his actions and the damage inflicted was a crucial first step in improving their mental and emotional states. The children are entitled to the benefit the assertion of dependency jurisdiction might confer, including the possibility that Father will accede to the dispositional plan and obtain the therapy and other help he needs to function as their father. (See Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464 [“If the evidence suggests that despite a parent’s substantial history of misconduct . . . , there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so”]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787 [“best interests of children,” as defined by Legislature, requires family preservation to take “first priority” when child dependency proceedings are commenced].) The court was warranted in asserting jurisdiction in order to bring the resources of the dependency court and DCFS to bear on the family dynamic, despite the past failed efforts of the family law court and Father’s resistance.

As a reviewing court may affirm the juvenile court’s finding of jurisdiction over the minors if any one of the statutory bases for jurisdiction enumerated in the petition is supported by substantial evidence, we need go no further in addressing Father’s jurisdictional challenge. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451; In re I.A. (2011) 201 Cal.App.4th 1484, 1491-1492.) Nonetheless, we further find the court’s assertion of jurisdiction under subdivisions (c) and (d) of section 300 fully supported. Subdivision (c) requires a showing that the 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’ and that either the parent is causing the emotional damage or the parent is not capable of providing appropriate mental health treatment.” (In re K.S. (2016) 244 Cal.App.4th 327, 337, quoting § 300, subd. (c).) The evidence supported that Kayla and K.G. were suffering from depression and anxiety. In addition, K.G. suffered panic attacks, and both girls became nearly hysterical at the prospect of visiting Father. Both girls had been seeing therapists for some time, and the 730 evaluator recommended continued therapy. This was sufficient to support the court’s subdivision (c) finding that they were suffering serious emotional damage.

With regard to the subdivision (d) finding, Father does not dispute the truth of the 2014 inappropriate touching incident, but contends the evidence was insufficient to support continuing concern because it was a single incident occurring more than three years prior to the jurisdictional hearing, and Father’s only recent contact with his daughters has been during conjoint counseling. As discussed above, the lack of recent abuse does not undermine the jurisdictional finding when it was attributable entirely to Mother’s and the courts’ efforts to ensure he was kept him away from the girls. (See Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 970 [observing in response to father’s argument that abuse of stepdaughter occurred years earlier that “it was mother’s installation of locks on the doors and taking father’s key that likely stopped the abuse, not any change in father’s desire for sex with preteen girls”].) To evaluate risk based upon a single episode of conduct, “a juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent’s current understanding of and attitude toward the past conduct that endangered a child . . . .” (In re J.N. (2010) 181 Cal.App.4th 1010, 1025-1026; accord, In re K.S., supra, 244 Cal.App.4th at p. 337.) Here, the reported incident was serious. Kayla stated that Father got into bed with her, touched her intimately on multiple parts of her body, and attempted to bribe her into secrecy afterward. The circumstances at the time of the jurisdictional hearing did not suggest Father’s attitude or understanding had improved. He continued to deny abusing Mother or the children in any way. The 730 evaluator characterized the current prospects for abuse as higher than moderate. The caseworker believed the children were at risk of sexual abuse. On this record, we find no basis to reverse any of the court’s jurisdictional findings.

B. Removal

Father contends the court erred in issuing an order “removing” the children from his custody. For the reasons discussed, we conclude any error was harmless.

Section 361, subdivision (c) permits the court to remove a child from the physical custody of parents or guardians “with whom the child resides at the time the petition was initiated” if the court finds by clear and convincing evidence that “[t]here 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, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.” (§ 361, subd. (c)(1).) A juvenile court may not “remove” a child from a parent’s physical custody under that statutory provision unless the child was residing with that parent when the petition was initiated. (In re Julien H. (2016) 3 Cal.App.5th 1084 (Julien H.); In re Dakota J. (2015) 242 Cal.App.4th 619, 632; In re Abram L. (2013) 219 Cal.App.4th 452, 460; In re V.F. (2007) 157 Cal.App.4th 962, 969.) However, the court’s reference to removal from Father at the dispositional hearing had no practical effect on the proceeding, and provides no basis for reversal for the reasons explained in Julien H. There, the father challenged the order limiting access to his child to monitored visitation, contending removal under section 361, subdivision (c) was inappropriate, and “no other authority grants the court the power to limit his access to his child in [an analogous] manner. . . .” (Julien H., supra, at pp. 1089-1090.) The court disagreed: “[T]he dependency court has the power under section 361, subdivision (a) and section 362, subdivision (a) to limit the access of a parent with whom the child does not reside and thus effectively remove the child from the noncustodial parent.”[7] (Julien H., supra, at p. 1090.) Because the father “d[id] not argue that in order to justify exercise of its power under section 361, subdivision (a) and section 362, subdivision (a), the dependency court must make a different factual finding or apply a higher standard of proof than would be required under section 361, subdivision (c),” he failed to show that the court’s reliance on section 361, subdivision (c) was prejudicial. (Julien H., at p. 1090; accord, In re Anthony Q. (2016) 5 Cal.App.5th 336, 356 [“[I]f the juvenile court finds by clear and convincing evidence at the disposition hearing that it would pose a substantial danger to the physical safety or physical or emotional well-being of a dependent child for a currently nonresident custodial parent to live with the child or otherwise exercise that parent’s right to legal and physical custody and there are no other reasonable means available to protect the child, the court is authorized under sections 361, subdivision (a), and 362, subdivision (a), to remove the child from the parent’s custody. . . . [¶] Although the juvenile court . . . erred in citing section 361, subdivision (c) when entering its disposition orders, those orders were authorized by the dependency statutes and justified by the court’s factual findings”].) Father challenges the court’s use of the word “removal,” but does not contend the court lacked authority to limit his access to his children. Nor does he suggest the court was required to make a different factual finding or apply a higher standard of proof than the one required under section 361, subdivision (c). Accordingly, Father has shown no prejudice, and any error in proceeding under section 361, subdivision (c) was harmless.[8]

DISPOSITION

The jurisdictional and dispositional orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, Acting P. J.

We concur:

COLLINS, J.

*Judge of the Los Angeles County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.