In re Eugene M.

Filed 7/30/07 In re Eugene M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from an order of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelo Torre, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

Mitchell H. appeals from a dependency court disposition order removing his son, Eugene M., from his custody, and placing him in the custody of the Orange County Social Services Agency (SSA.) Mitchell argues that in light of the high burden of proof required to justify removing a child from parental custody, the court abused its discretion in doing so in this case. We cannot agree.

The evidence here was undisputed that Eugenes mother, who apparently suffers from mental illness and has no permanent home, represented a danger to Eugene, and he feared her. Nonetheless, Mitchell consistently allowed her to stay in the home he shared with Eugene, and only sporadically enforced a restraining order against her. Although Mitchell did promise he would keep Eugenes mother away from him in the future, the court was not obligated to believe that promise. And Mitchells refusal to comply with the courts suggestion he change his residence and not inform Eugenes mother of the new address not only casts some doubt upon his commitment to Eugenes safety, but also undercuts his argument the court failed to consider whether there were reasonable means by which [Eugene] can be protected without removing [him] from from the . . . physical custody [of his parent]. (Welf. & Inst. Code, 361, subds. (c)(1) & (c)(3).^[1] The order is affirmed.

* * *

Eugene came to the attention of SSA when his mother caused a significant disturbance at the back to school night for Eugenes school. At the time of the incident, Eugene, age 10, was present at the school, but Mitchell was not with him. According to Eugene, he had informed Mitchell he was leaving for the back to school event, and Mitchell assented.

According to Mitchell, however, he did not and would not have allowed Eugene to go to the school at night by himself, and expected to attend the event with Eugene after taking a few minutes to shower after work. However, while Mitchell was in the shower, Eugene left without permission. Mitchell then spent some time attempting to find him, before he also left for the school to see if Eugene was already there. When Mitchell arrived at the school, the police were already there, and would not immediately let him see Eugene.

SSA was called, and Eugene was detained. He was subsequently placed in the home of his maternal grandparents. SSA filed a petition seeking jurisdiction over Eugene, alleging that Eugenes mother suffers from what is believed to be schizophrenia and bipolar disorder. Mitchell was aware of Eugenes mothers mental illness, but failed to protect Eugene from her conduct which allegedly included burning Eugene with a cigarette, killing his pets, destroying items in the home, chasing him around the home and the yard, and walking around with items protruding from her buttocks.

Technically, it appeared that Eugenes mother was homeless, although she was a frequent visitor to the home shared by Mitchell and Eugene. She apparently paid no attention to a restraining order Mitchell had in effect for at least some period of time prior to the incident at Eugenes school (the precise dates the restraining order or orders were in effect is not clear.) And while Mitchell did make sporadic attempts to enforce the restraining order, he more often allowed Eugenes mother to stay in or around the home whenever she chose.

A detention hearing was held on October 11, 2006. Mitchell requested that Eugene be returned to his custody, and promised he would diligently enforce a restraining order against Eugenes mother in the future. The court nonetheless ordered Eugene detained, and set the case for a contested jurisdiction hearing.

The jurisdictional hearing commenced on November 29, 2006. Eugene testified, and stated that he wanted to return home with Mitchell, but did not want his mother to be around. Mitchell testified he had recently renewed his restraining order, and explained he had called on the Anaheim Police Department to enforce it in the past. The social worker confirmed there were records establishing that Eugenes mother had been arrested on several occasions for violated a restraining order. Mitchell agreed Eugenes mother needed to be supervised around Eugene, and promised to call the police any time she appeared at his home.

At the conclusion of that hearing, the court then explained its thinking in some detail: This is a case about torn loyalties. Thats what this case is about. We have the and its the fathers torn loyalties. Its the loyalty that he feels towards the mother of his child, as well as the loyalty that he feels towards his child, and he attempts mightily to be able to juggle both of those things and to be able to maintain them, to maintain them in his life, and it is not possible, under the circumstances that have been occurring. [] The court would like to give the father an opportunity to, perhaps, move away from the location, to obtain the restraining order that counsel has suggested so that the court can evaluate whether or not to return the child back to the home of the father. Its clear to the court that the child wants to be home with the father. [] . . . [] I think that he would, truly, like to live with his dad, but he doesnt want to do that while hes exposed to the trauma that occurs as a result of the conduct of the mother. [] Counsel [referring to Mitchells counsel], if your client is interested in doing such a thing, the court is willing to, on its own motion, set the matter for a dispositional hearing so that I can consider return of the child to the father. (Italics added.)

The court made clear that the intent of having Mitchell change his residence was to prevent Eugenes mother from being able to find them: The whole purpose of that is you would maintain your address confidential from the childs mother and that all contact between the child and the mother be set up through social services agency, so that it can be in a controlled setting.

After conferring with Mitchell, his counsel informed the court Mitchell was agreeable to the courts suggestion: my client would be willing to move and we would be in agreement with the court setting out disposition, to evaluate whether the child can be safely removed from [sic] the fathers care at that time.

However, prior to the continued disposition hearing, Mitchell changed his mind, telling the social worker that he has no intention of moving from his current residence. During this interim period, Mitchell also exhibited difficulty complying with the courts order he not discuss the case with Eugene, and had more than one visit terminated when he attempted to do so.

On one of those occasions, Mitchell became angry and defensive on behalf of Eugenes mother when Eugene expressed his belief that she had killed his chameleon. When the social worker reminded Mitchell he could not discuss Eugenes mother or any aspect of the case during visitation, he became agitated and told the social worker that he had a right to say whatever he wants to Eugene.

Mitchell also told the social worker that he believed the instant dependency case was merely part of an attempt by Eugenes grandmother to steal him, that the system is corrupt, and that social services had wrongfully detained Eugene. Similarly, he stated that the judge in the case should be fired for violating his rights.

At the continued disposition hearing, the parties submitted the matter on SSAs reports and proposed findings although Mitchell objected to SSAs recommendation, and preserv[ed] his appellate issues. The court then concluded, based upon clear and convincing evidence, that returning Eugene to Mitchells custody would be detrimental. Consequently, the court vested custody of Eugene with SSA, and approved its proposed service plan.

Initially, we must emphasize what is not at issue in this appeal; i.e., that Eugenes mother actually represents a danger to him. In his brief on appeal, Mitchell concedes the point, acknowledging that it was not safe for Eugene to be around Mother alone and that it was necessary to enforce the restraining order every time Mother violated it. Indeed, one of the cornerstones of Mitchells argument is that because [he] acknowledged the risks associated with Mothers behaviors, he would not allow Eugene to be exposed to [her] in the future, alleviating any risk of future harm . . . .

This case is also not about Mitchell failing to make an easy choice or take minor steps to remedy the situation. Mitchell is between scylla and Charybdis. We sympathize, but that sympathy cannot change the law, or Mitchells obligation to Eugene.

With that in mind, we turn to what is at issue: Whether the court abused its discretion in determining that (1) returning Eugene to Mitchells custody would subject him to a substantial danger to his physical or emotional well-being i.e., that Mitchell would not actually be willing and able to keep Eugenes mother away from their home; and (2) there were no reasonable means by which Eugene could be protected without removing him from Mitchells custody. (See Welf. & Inst. Code, 361, subds. (c)(1) & (c)(3).)

Although a juvenile courts order removing a child from parental custody must be based upon clear and convincing evidence, we review that order under the usual substantial evidence test. [O]n appeal, the substantial evidence test applies to determine the existence of the clear and convincing standard of proof, the same as in other cases. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1038; In re Robert A. (2007) 147 Cal.App.4th 982; In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Henry V. (2004) 119 Cal.App.4th 522.)

Applying that standard, we conclude substantial evidence supported the courts conclusion that returning Eugene to Mitchells custody would subject him to a substantial danger to his physical or emotional well-being.

According to Eugene, his mother had essentially been living with him and Mitchell prior to the intervention of SSA, although he noted that Mitchell preferred to characterize her presence as merely visiting. Eugene stated he is afraid of his mother, because of her creepy appearance and strange behavior, and that he hides from her. He believes she has killed several of his small pets.

Eugene also stated Mitchell was aware that his mother frightened him, and that she sometimes chased him around the home and yard for up to an hour while he tried to hide from her, but Mitchell rarely attempted to intervene. Instead, Mitchell told Eugene he shouldnt be afraid of her. Eugene testified his father generally does not call the police to report his mothers violations of her restraining order, but only threatens to. Eugene did say, however, that he takes comfort in the knowledge that as he is getting older, he is becoming bigger, and can climb higher and . . . run faster, all of which will allow him to survive better, while [his mother] is getting older, slower and worse.

Finally, Eugene acknowledged that living with Mitchell was otherwise pretty good, and he had no complaints about him other than the fact that Mitchell allows Eugenes mother to be around.

The foregoing evidence is certainly sufficient to support the conclusion Mitchell has refused to take Eugenes mothers mental problems seriously in the past, and has previously refused to acknowledge the danger she poses to Eugene. And while it is true, as Mitchell argues, that evidence of a parents past misconduct is not necessarily sufficient to establish that the child will continue to be exposed to danger in the future (see In re Rocco M. (1991) 1 Cal.App.4th 814, 819 [the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm]), that analysis is for the trial judge, not us, and the evidence here was sufficient to support his conclusion. Even though Mitchell ultimately did acknowledge that Eugenes mother posed a danger to him, and expressed his willingness to more vigilantly enforce a restraining order against her in the future, the court was not compelled to conclude that anything would actually change, or even that the promised change would be sufficient to protect Eugene.

As the court noted, Mitchell seems genuinely torn between his loyalties to both Eugene, and Eugenes mother. And frankly, Mitchells comments to the social worker, just prior to the continued dispositional hearing, strongly suggest he actually remains unconvinced that Eugene really requires substantial protection from her.

But even assuming the court believed Mitchell was willing to start enforcing such an order assiduously, there is no compelling reason to believe that change alone would be effective in protecting Eugene at least emotionally. Based upon past performance, there is certainly no basis to assume Eugenes mother would willingly comply with such an order. Instead, she would presumably continue to show up at the home whenever she chose. Consequently, Mitchells enforcement of the order, even if done consistently, would simply mean the police would be called to forcibly cut short each of her visits. This is hardly the sort of spectacle a child should be witness to on a regular basis.

Under these circumstances, the court was justified in concluding that merely continuing a restraining order in effect would not be sufficient to protect Eugene from the danger his mother represented. Instead, the court suggested what Mitchell needed to do to protect Eugene was to move to a new residence, without disclosing its location to Eugenes mother. In that way, Eugene might be spared entirely the trauma of her improper and unplanned visits.

The courts suggestion was quite clearly an attempt to fashion reasonable means by which [Eugene] may be protected without removing [him] from the physical custody [of his parent]. ( 361, subds. (c)(1) & (c)(3).) And while such an approach was ultimately deemed unacceptable by Mitchell, that certainly does not establish it was unreasonable. As we have already noted, the court was entirely justified in concluding that simply leaving Eugene in Mitchells custody, in the home where his mother had a habit of making frequent visits, was not appropriate.

Finally, we agree with SSA that Mitchells own proposed alternatives to removing Eugene from his custody are not adequate. Even assuming SSA were in a position to strictly supervise Eugenes placement in Mitchells current home, it cannot be expected to monitor the situation on a round-the-clock basis, or to otherwise ensure that Eugenes mother is actually kept away from him. As we have already explained, simply ensuring that Eugenes mother is arrested each time she manages to get near him would not seem to be the ideal outcome for Eugenes emotional health.

Even less appealing is the suggestion that Eugene himself could be counted on to provide his own safety net if left in Mitchells custody. According to Mitchells argument, Eugene is a bright, articulate eleven year old who was not afraid to come forward and was capable of protecting himself from Mother....There is no reason to believe that if Eugene were instructed to contact [SSA] if Mother showed up, [Mitchell] failed to enforce the restraining order, or he was afraid, that he would not do so.

It hardly needs saying that Eugene is the child here. He is the one deserving of protection, and should never be given the responsibility of enforcing the courts orders against his own parents. Most particularly, he cannot be given the task of ratting out the father whom he loves to SSA. Indeed, the very fact Mitchell asserts such an argument strongly implies he really does continue to see Eugene as being entirely capable of dealing with this situation himself, and without the interference of meddling social workers. After all, if Eugene can be counted on to call SSA whenever he has a problem, why couldnt we just cut out the middle man and instruct him to call the police directly? To articulate the point is to refute it.

We find no abuse of discretion in the courts order and it is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

FYBEL, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1] All further statutory references are to the Welfare and Institutions Code.