In re Trevor T.

Filed 10/20/06 In re Trevor T. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

Roy T. (appellant), father of Trevor T. (the minor), appeals from the judgment of disposition on a subsequent petition. (Welf. & Inst. Code, §§ 342, 395.) Appellant contends the juvenile court’s order taking jurisdiction pursuant to Welfare and Institutions Code section 300, subdivision (g) was not supported by substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The minor was born in August 1995. His parents married in August 1995, separated in March 1996, and divorced on July 10, 1997. On April 22, 1996, appellant petitioned the family court for custody of the minor. The fight between the parents over custody of the minor has continued unabated throughout the minor’s life.

On September 24, 2003, the family court referred the case to the Children’s Services Division (CSD) due to its “continuing concerns in the case.” CSD filed a non-detained dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (c) on behalf of the minor on February 18, 2004. The petition alleged the minor had suffered, or was at substantial risk of suffering, serious emotional damage as a result of parental conduct.

According to the amended petition,^[1] the minor displayed “severe anxiety and withdrawal at school,” and had been “suspended for taking a knife to school.” The parents “repeatedly made allegations of abuse of the child against one another, causing the child to be subjected to repeated assessments by child protection workers.” The “child continues to be involved in the parents’ disputes” despite a court order to refrain from this activity. The mother also failed to provide regular counseling for the minor in violation of a court order.

The jurisdiction/disposition report listed 58 referrals involving the minor to CSD in Butte County and other counties. The overwhelming majority of these reports were deemed unfounded or evaluated out. Both parents believed they were acting in the minor’s best interest, but “due to the ongoing custody battle and influences from his parents there has not been a clear disclosure from the child that one parent has substantially abused him over the other, nor is the child fearful to be alone with either parent.”

The minor was suspended from school on June 16, 2004, for stealing $30 and a cell phone from a substitute teacher. The minor met with his attorney^[2] and a social worker to discuss the incident. He did not want to discuss the theft, but expressed anger at his mother “saying she is mean, a bum, and never wants to do activities with him.” The minor “appeared depressed and wrote on a paper, ‘shoot me shoot me shoot me.’”

The mother referred the theft to CSD, claiming appellant committed the theft, abducted the minor from the street, and took him to a hotel where the minor was held against his will. She claimed appellant asked the minor for money and slapped him. The mother also asserted appellant disciplines the minor by putting his finger up the minor’s anus. She had the minor pull down the edge of his pants to a social worker to show a bruise on his right hip. The minor claimed appellant punched him the other night, but was still very willing to visit his father in Santa Rosa. The reporting party stated the mother was not making much sense.

The report concluded the minor “appears to be a confused young boy who tends to tell the adults in his life what they want to hear, thus making it difficult to discern what is the truth and what is a lie.” The minor has been “pulled back and forth” between his parents, and “thrust into the middle of his parents’ very emotional and traumatic conflicts.”

The juvenile court modified the allegations and sustained the petition on August 18, 2004. The minor testified in chambers at the contested dispositional hearing. He told the court he did not “believe all that stuff” about appellant abusing him. He had “just been following what my mom has said.” His mother slapped him the other night when he could not remember being abused by appellant. She smokes in the house, cusses him out, and sometimes withholds food as punishment. His dad does not smoke, cuss, or hit him. The minor has no friends at school. The kids at school are afraid of him because he fights. He is not at all afraid of his dad, but is a “teeny bit” afraid of his mom.

After the minor’s testimony, the juvenile court ordered his immediate detention and placement in foster care. The court declared “[w]e have a nine-year-old who’s scared, doesn’t have any friends, who has been kicked out of his second school now and is very, very traumatized. This child has been through hell and back.” The court did not issue a disposition order. It determined CSD would have to file a detained petition and set a date for a jurisdictional hearing on the new petition.^[3]

The detention report stated the minor “is a disturbed and frightened child that has no friends at school, has been recently suspended from school five times, and whose behaviors have escalated to the point that he was on the verge of being expelled.” The mother has not demonstrated the “ability to adequately parent her son or to provide suitable boundaries or consequences for his behavior.” Appellant “has repeatedly inflicted emotional trauma on his son by yelling at him and creating emotional conflict in the child including calling the mother a ‘fucking bitch’ and demanding over the phone that [the minor] say what he tells him to at Court.” The minor told a social worker he was afraid of appellant, and is upset when “he gets angry and yells” at the minor.

A subsequent petition filed on December 17, 2004, incorporated the allegations set forth in the amended February 18th petition. The juvenile court sustained the petition on the basis of the February 18th allegations. The court also found the minor’s prior testimony could not be believed due to his “horrendous brainwashing” and being in the middle of his parents’ dispute.

The January 27, 2005, jurisdiction report indicated the minor “adjusted well” to his foster home. The minor was now making good progress in school, and trying hard to stay out of trouble. However, he is “somewhat of a chameleon; he has become an expert at changing his overall demeanor and affect depending on who is in the room with him.” He acts like a normal nine-year-old boy with his mother, but the minor’s “demeanor was entirely different in his father’s presence, he was speaking in a more childish voice, became quite clingy as he sat in his father’s lap, and was rubbing his father’s face repeatedly for a large part of the visit.” The minor made a card thanking the social worker and others for placing him in foster care.

The court held a contested jurisdictional hearing on the detained petition. The mother testified that she never beat or withheld food from the minor. In one telephone call, appellant told the minor, “I’ll tell you what, we’re going to be putting you on the stand pretty soon. You better decide who the fuck you want to live with, me or her . . . .” Appellant also talked about the minor’s mother, saying “don’t you apologize for that Bitch” and that appellant “despised her.” The minor “immediately started crying and hung up and ran from the room.” Appellant made other calls like this to the minor. The mother admitted reading the transcripts of the minor’s testimony in juvenile court and then hitting the minor because he did not remember if appellant abused him. She blamed appellant for the minor’s lying, as appellant had no ethics or morals.

Tina Smith, the minor’s social worker, testified that the minor is uncomfortable with either parent but happy to go in foster care. He told her appellant cusses and yells at him and his mother “smokes green stuff . . . .” The minor made it “very clear” his parents are tearing him apart.

The minor’s attorney testified. The minor’s story changed with the person to whom it was being told. He first said his mother made him lie, and then said appellant abused him, telling him to lie about his mother.

Counsel did not believe the minor was competent to testify. He would say whatever is necessary at the moment as a way to protect himself. She talked to her client the day he was suspended for taking a knife to school. “He was so quiet and sad” counsel “knew something was going on.” He wanted the court dates to stop because it made his mother “crazy mad” and “caused all of these problems.” He was so confused he could not think well, which was unusual for this very bright boy. The minor “kept trying to count on his fingers and trying to figure out how he could make it equal for these parents, just staying with them, both parents.” Counsel heard appellant telling the minor what to say when the minor left a message on her answering machine.

Appellant denied ever coaching his son. The minor has been damaged by the courts and social service agencies rather than by his parents. His mother has negatively influenced the minor by telling him untrue things about appellant. He denied ever calling the mother derogatory names in front of the minor.

The juvenile court sustained the petition and found the allegations to be true. The court took judicial notice of the family law files, and noted the minor has been the subject of an ongoing custody battle since he was seven months old. It was clear that neither parent could protect the child from the other. The parents involved the minor in their dispute, and he was severely emotionally damaged as a result.

The dispositional report noted how the minor’s name demonstrates the conflict between the parents. The minor’s parents insist on using different names for him, and he must change his name to accommodate each parent’s wishes. The recommendation was to provide family reunification services to the parents. After a contested dispositional hearing, the juvenile court adopted the findings and orders of the report.

DISCUSSION

Appellant contends the evidence was insufficient to support a finding of jurisdiction under Welfare and Institutions Code section 300, subdivision (c).

When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing, we must determine if there is any substantial evidence, i.e., evidence which is reasonable, credible and of solid value, to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve in favor of the prevailing party all conflicts in the evidence, and defer to the trier of fact’s assessment of witness credibility. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) Hence, we may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Welfare and Institutions Code section 300, subdivision (c) “sanctions intervention by the dependency system in two situations: (1) when parental action or inaction causes the emotional harm, i.e., when parental fault can be shown; and (2) when the child is suffering serious emotional damage due to no parental fault or neglect, but the parent or parents are unable themselves to provide adequate mental health treatment.” (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)

The evidence of parental fault is overwhelming. The minor is at the center of a vicious struggle between his parents that has raged continuously since he was seven months old. He has been subjected to 58 CSD referrals, the overwhelming majority of which were unfounded or evaluated out. Appellant coached the minor in what to say to the minor’s counsel and the mother has coached her son in what to tell his therapist. The mother admitted to striking the minor after he testified that appellant did not abuse him. Appellant has reduced the minor to tears with phone calls in which he yells at the minor and talks about the child’s mother in a way no nine-year-old should have to hear. The parent’s fight with each other is so encompassing that the minor’s name is part of the battlefield, requiring the young boy to fit the different wishes of each parent.

Appellant argues there is insufficient evidence of the minor either suffering or being likely to suffer severe emotional damage. In support of his contention, appellant notes statements from his social worker that “it is hard to determine the scope of emotional damage that [the minor] has suffered.” The social worker also declared “[s]everal counselors have assessed [the minor’s] emotional health over the years with various determinations” but never elaborated upon what those “determinations” were. Appellant contends the many statements in the record concluding the minor was emotionally damaged were never supported by any specific facts or clinical diagnosis.

The minor was twice suspended from school, once for bringing a knife. Before detention, the minor was on the verge of being expelled from school. He wrote “shoot me shoot me shoot me” while discussing the theft incident with his attorney. The battle between his parents has turned the minor into “somewhat of a chameleon” who tailors his stories and demeanor to his audience. He thus told wildly divergent stories about parental abuse to his social worker, counsel, and the juvenile court. This led his counsel and the juvenile court to conclude that the minor could not be a credible witness. The boy has been reduced to counting on his fingers to set some balance between his parents before a court date.

Something is very wrong with the minor when there is such a dramatic difference between his demeanor with his mother and with his father. The trial court noted at the dispositional hearing that the minor was very troubled and teary eyed when talking about appellant. The battle between the parents was turning a bright child into a confused and sad little boy.

This is substantial evidence of serious emotional damage or a substantial risk of such damage. The parents’ battle was emotionally harmful to the minor and showed no signs of abating. Although the juvenile court lacked an expert psychological diagnosis of the minor’s emotional state, there was specific evidence of serious emotional damage and the risk of continuing damage if the juvenile court did not exercise jurisdiction.

Citing In re Brison C. (2000) 81 Cal.App.4th 1373 (Brison C.), appellant claims the minor’s good adjustment to foster care and his new school demonstrate he was not severely emotionally damaged. Brison involved parents who had engaged in a bitter, protracted divorce which left the child in the crossfire of his parents’ mutual antipathy towards each other. (Id. at p. 1376.) As of the filing of the petition, the “evidence shows only that Brison, an otherwise reasonably well-adjusted child who performed well at school and displayed no serious behavioral problems, despised his father and desperately sought to avoid visiting him.” (Ibid.)

Brison C. does not support appellant’s contention. In this case, there is ample evidence of the minor’s continuing emotional damage. While the minor adjusted well to foster care, he did steal from one child and had problems with encopresis. His relatively easy adjustment reflects the removal from the toxic environment of his parents’ unending battles.

Appellant contends a juvenile court’s authority should be sparingly exercised over cases referred from a family court. We are mindful that the juvenile courts are inappropriate substitutes for the family law courts. “Child custody disputes between divorced parents, neither of whom pose a risk of real detriment to the child, should not be waged at taxpayers’ expense in the juvenile courts.” (In re John W. (1996) 41 Cal.App.4th 961, 965.) Juvenile court intervention is necessary when the hatred between the divorcing spouses puts the minor at substantial risk of emotional damage, “[b]ut such cases should be extremely rare.” (Id. at p. 975, fn. omitted.)

This is one of those rare cases. The parents refuse to end their conflict, and this conflict inflicts considerable emotional damage on the minor. (See In re Anne P. (1988) 199 Cal.App.3d 183, 198-201.) We conclude the juvenile court’s order taking jurisdiction under subdivision (c) of Welfare and Institutions Code section 300 is supported by substantial evidence.DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

SIMS , J.

BUTZ , J.

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^[1] The original petition was amended by the juvenile court with the parties’ agreement at the jurisdictional hearing on the section 300 petition.

^[2] Counsel was appointed by the family court to represent the minor in 2000 after appellant took him to Florida in violation of a court order.

^[3] A section 387 petition was filed on November 24, 2004, and subsequently withdrawn on December 20, 2004.