In re Anastacia L.

Filed 9/27/07 In re Anastacia L. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Luis L. (father) appeals from jurisdictional and dispositional orders of the juvenile court adjudging his daughter, Anastacia Samantha L., a dependent child under Welfare and Institutions Code[1] section 300, subdivision (c). The juvenile court found that Samantha suffered serious emotional damage and that her father was unable to provide adequate care for her mental health needs. Among other things, the court found that Samantha was absent from school for extended periods as a result of her fear that she and her father were being stalked by a stranger. On appeal, father contends the juvenile courts jurisdictional findings are not supported by substantial evidence and that the juvenile delinquency court, not the dependency court, has exclusive jurisdiction to deal with Samanthas school attendance problems.

While fathers appeal was pending, the juvenile court set a hearing under section 366.26 to implement a permanent plan for Samantha. Father filed a petition seeking writ review of the courts order setting a section 366.26 hearing, contending the court failed to give proper weight to Samanthas desire to return to her father. (Cal. Rules of Court, rule 8.452.) We issued an order to show cause and consolidated the appeal with the writ petition.

We affirm the juvenile courts jurisdictional and dispositional orders, and we deny the petition seeking writ relief.

Factual and Procedural History

Petition

After Samanthas mother died in 1995, her father raised her. On March 23, 2006, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition alleging that Samantha, then 14 years old, came within the jurisdiction of the juvenile court under subdivisions (b) and (c) of section 300. The Bureau alleged that father had anger management and mental health problems that put Samantha at risk of harm in that he had been stalking his ex-girlfriend with Samantha present, he had gotten into violent arguments with his landlord, and he believed he was being stalked and had instilled this fear into Samantha. The Bureau further alleged that father had inflicted serious emotional damage upon Samantha in that he believed he and Samantha were being stalked by an unknown assailant. He had allegedly convinced Samantha to fear for her own safety, resulting in her being too afraid to attend school or spend time with friends. According to the petition, father had also failed to cooperate with multiple attempts by school personnel to enroll Samantha in therapy.

Detention

Following a contested hearing on March 27, 2006, the juvenile court ordered Samantha detained from fathers custody. The court found there was a relative willing and able to care for Samantha. The court ordered a psychological assessment or evaluation of Samantha, and it ordered a similar assessment for father, but only if he agreed to be evaluated. The courts order allowed for supervised visitation between father and Samantha at least one time per week but prohibited father from contacting Samantha other than during visits approved by the Bureau.

Jurisdiction Report

In the report prepared for the jurisdiction hearing, the Bureau included witness statements supporting the factual allegations of the dependency petition. On the first day of the contested jurisdiction hearing, the court considered fathers evidentiary objections to the jurisdiction report and agreed to exclude various statements in the report on the basis of hearsay and other objections. A summary of the portions of the report admitted into evidence follows.

Rhonda B. was in a relationship with father that ended in 2004. She sought a restraining order against father in August 2004 as a result of his harassing her at church, at her place of employment, and at her home. After the restraining order expired one year later, the harassment continued and Rhonda filed for another restraining order in November 2005. Father had threatened Rhonda and told her she better watch her back.

Lindsay Kennedy, the social worker assigned to the case, had met with Samantha on March 24, 2006. Samantha appeared to be very emotionally fragile and cried as she described her fear of the stalker to Kennedy. Samantha told Kennedy that she and her father had been stalked since March 2004, at around the time father broke up with his ex-girlfriend, Rhonda. Samantha told Kennedy she had first seen the stalker in gym class in approximately Spring 2005, when she claimed to have seen the stalker watching her from an apartment complex across the street from the school. Kennedy reported that Samantha and her father moved into that same apartment complex in November 2005. Samanthas fear of the stalker made her too afraid to walk to school, go outside in gym class, or walk home. However, father did not walk her to school or back, even though his work schedule sometimes permitted him to do so.

Kennedy reported that father violated a court order on April 10, 2006, when he spoke about the dependency case during a monitored visit with Samantha. During the visit, father pleaded with Samantha twice to get all the reports and read them before [c]ourt. Samantha called Kennedy that same day, sounding upset and anxious and stating it was urgent that she read the reports.

The court admitted several statements attributed to police officers employed by the City of Concord. One officer reported a traffic stop involving father on October 14, 2005. During the traffic stop, the officer searched fathers vehicle and found a pair of binoculars, a pair of night vision monoculars, and a Gamo pellet pistol, which the officer described as a replica of a real semi-automatic pistol.

Esmeralda Okendo was the emergency response social worker assigned to investigate Samanthas case. Father told Okendo he was being stalked by a man with blond hair. He also told Okendo that his ex-girlfriend, Rhonda, had brought the man to church and then to his apartment. Father believed the stalker had stolen cards from his wallet after he accidentally left it at Rhondas apartment. According to father, the stalker then used his video rental card to rent pornographic movies that were never returned. Father also told Okendo the stalker called his friend, Vicky V., all of the time. The stalker allegedly played demonic music and old video movies in the background while on the phone with Vicky. Father believed the stalker had recruited 12 other people to assist in stalking him and his daughter.

Okendo met with Samantha and asked her why she did not like school. Samantha told Okendo,  its not that I dont like it . . . Im afraid, like my dad was saying, there is someone stalking us.  Samantha told Okendo the stalking started in 2005 and that  hes after me and Im super scared . . . he got caught once and he got away . . . now he has people doing it for him . . . he uses one of those voice things . . . if they caught this guy I would be able to concentrate more on school.  Samantha admitted being scared to spend time with friends because of the stalker.

On March 9, 2006, Okendo held a Team Decision Meeting at the Bureaus office. Also present at the meeting were a therapist and an educational liaison. The meeting began after the participants spent about thirty minutes going over a consent form. Father became quickly agitated, raising his voice and pointing his finger at . . . Okendos face while referring to her as lady.  After several attempts to calm father, the meeting was terminated. Later, father called Okendo to apologize for his behavior.

The jurisdiction report also contains a statement from Samanthas special education teacher, Jackie Stanley, who stated she had spoken to Samantha on many occasions about missing so much school. Stanley said Samantha had not attended a full week of school during the entire school year. Stanley recalled Samantha was very afraid of her stalker and too afraid to come to school. At times, Samantha was so stressed out that she would burst into tears. On one occasion, Samantha ran back into the room during gym class, crying, and said she had seen her stalker outside.

Stanley recalled that father would easily become physically agitated during their meetings and that she was continually trying to de-escalate his rising agitation. According to Stanley, father would scream for Samantha to get out of the car, telling her she had to go to school. On other occasions, father would call Stanley and say he had given up and could not get Samantha to attend school.

Although Samantha was in the eighth grade, Stanley estimated she functioned at the second or third grade level. Stanley believed Samantha could have functioned at a fifth or sixth grade level if she had not missed so much school.

Jurisdiction Hearing

The court conducted a contested jurisdiction hearing over five days beginning on April 19, 2006. Samantha testified first. When asked why she had missed so much school, she responded, Because of the stalker. Hes stalking me. In response to a question about how she knew someone was stalking her, she said, I didnt exactly know, but every time after I -- every time I saw him after that, it just kind of came to me. And he kept calling and everything.

Samantha first learned of the stalker about two years before the jurisdiction hearing, around the time she and her father moved out of Rhondas apartment. She claimed to have no idea why the stalker was stalking her, although she surmised he was trying to get her father through her. Samantha and her father believed Rhonda was cheating on her father with the stalker. At one point in her testimony, Samantha explained that she first saw the stalker when her father was still dating Rhonda. According to Samantha, she was in a car with her father and Rhonda when the stalker walked by the car and stared at them. When prompted by fathers attorney, Samantha agreed that when the stalker passed by, Rhonda started pointing at her father and mouthed, thats him.

Samantha claimed to have seen the stalker about three or four times. She described him as a man with long, blond hair. However, she also described him as having really short hair at one point. Although she said he was skinny, tall, and had a long scar across his face, she also stated she did not notice any scar on his face the first time she saw him.

Samantha did not believe there was more than one stalker, although she said she knew he gets other people to help him. Later in her testimony, she admitted she did not know that he gets other people to help him, but she said theres tons of people in the background when he would call. Asked what these other people did to help the stalker, Samantha said she did not know.

Samantha estimated the stalker called her cell phone three or four times. She had spoken with the stalker for a few seconds. He would say things such as, I know where youre at, and that he was going to hurt Samantha and get her dog. Father took away Samanthas cell phone, purportedly so she would not receive calls from the stalker. Samantha estimated the stalker had called her fathers cell phone 10 or 15 times. She claimed to know the stalker had called her father because she looked at his cell phone log and saw incoming calls listed as a private number, which she assumed originated from the stalker.

Samantha stated she had never called the police to report the stalker, and to her knowledge, her father had never called the police to report the stalker, either. Although she thought that staff members at school had encouraged her to speak to the police about the stalker, she had never asked her father to call the police to tell them about the stalker.

She repeatedly denied that her father encouraged her to believe the stalker exists, and she did not think her father made up the stalker. At one point, she claimed not to have talked to her father about the stalker. Later, however, she admitted she had spoken with her father about how to stay safe from the stalker.

Samantha said that an adult friend of her fathers, Vicky, also knew of the stalker. According to Samantha, Vicky claimed the stalker had attacked her. Other than Vicky, her father, and Samantha, no one else had seen the stalker. Samantha admitted later in her testimony that Vicky had never spoken to her directly about the stalker, but she thought that Vicky had told her the stalker had caused her to suffer bruised ribs. She also admitted she did not know if her father had ever actually seen the stalker.

Since moving away from her father, Samantha had not seen the stalker. However, she claimed she felt no safer when she was away from her father because she believed her father protects her.

At one point in her testimony, Samantha claimed never to have cried at school. She had seen a therapist just once at her school. She was supposed to see the therapist a second time but missed school the day of her second appointment because she was too afraid of the stalker.

Samantha testified that her father never laid a hand on her, although she agreed he had a temper. Samantha admitted her father freaked out on occasion. She said she did not really pay attention to it. She said her father freaked out at a School Attendance Review Board hearing and that he was asked to leave. She testified she was upset and cried following that incident.

Father never told Samantha he was going to get a counselor or therapist to help her. Samantha consistently stated she wanted to go back to her fathers house.

Also testifying at the jurisdiction hearing to support the allegations of the petition were Esmeralda Okendo, the social worker assigned to investigate allegations of neglect; Lindsay Kennedy, the social worker assigned to the case; Jacquelyn Stanley, Samanthas special education teacher; and Cynthia Goin, a vice principal at Samanthas school.

Kennedy testified that she had called father on May 12, 2006, to discuss several issues. Father became very upset, raising his voice and talking very fast. He yelled at Kennedy but called back later to apologize for yelling. While describing this conversation, Kennedy remarked that [father] usually hangs up on me when we have conversations.

Kennedy reported she had given two sets of written referrals to father for services and had spoken to him on the telephone about the referrals. The referrals were for services such as parenting and anger management classes, therapy, and a mental health assessment. Father told Kennedy he was not willing to participate in any referrals because he was not guilty of anything.

Kennedy testified that although Samantha was permitted to call her father whenever she wants, her caretakers said she does not ask to call. And, when she had called, father did not answer. According to Kennedy, during visits father talked about the family dog in a way that caused emotional distress for Samantha, including telling her that he would have to get rid of the dog. It was Kennedys observation that during visits Samantha exhibited more concern for her fathers feelings and reactions than for her own.

Kennedy testified that Samantha had been placed on a 5150 hold during the first week of June 2006 to evaluate whether she presented a risk to herself.[2] The hold was necessitated because Samanthas therapist could not get her to agree to refrain from harming herself between sessions. Samantha told Kennedy she was concerned about telling her father she had been hospitalized because she thought he would be angry.

Kennedy called father on June 6, 2006, to discuss Samanthas hospitalization and to seek fathers consent to place her on medication. Father was very upset. He told Kennedy he was going to sue her and whoever put Samantha on medication. At the end of the conversation, father told Kennedy she would be sorry and hung up the phone. The court followed the recommendation of Samanthas doctor to allow her take Prozac, over fathers objection.

Kennedy reported that on June 7, 2006, she had an encounter with father. She had been walking down the street when father rode up on a bicycle and yelled something at her she did not understand. He then sped off, ran a red light, and weaved in and out of oncoming cars.

On June 13, 2006, Samantha had a visit with father and asked Kennedy to attend the visit in order to help her talk to her father about her hospitalization for the 5150 hold. During the visit, father was angry, and Kennedy had to intervene a couple of times to get him to calm down. Father told Samantha she could not trust anyone and that all people were liars. Father continued to raise his voice even after Kennedy attempted to calm him down.

Kennedy reported that since Samantha began taking medication she was feeling much happier. Samantha told Kennedy that she did not realize how sick she had been, stating that it was probably a good thing she was hospitalized and put on medication.

Kennedy reported that Samantha had been in her new school from the first week of April through June 9, 2006. During that time, Samantha had missed just nine days of school, including two days she was in court and an additional one or two days after each court appearance because she was upset about testifying. Samantha told Kennedy that she felt safe in her new placement and at her new school.

Since Samantha was removed from her fathers care, she had blossomed into a very different child, according to Kennedy. Kennedy remarked: Shes happier. She wears make-up and jewelry. She talks about friends at school. She goes to school every day. Shes not missed one day of summer school. She has a boy that she likes at school that she talks to on the phone. Shes involved in extracurricular activities.

Kennedy opined that father was unable to care for Samanthas mental health needs. He had been unable to arrange for her to receive counseling despite many efforts by the school to secure counseling for Samantha. According to Kennedy, father was unable to deal with Samanthas fear of the stalker, and his personality interfered with obtaining services to assist Samantha.

Jacquelyn Stanley, Samanthas special education teacher, testified that Samantha had been absent from school every day in October 2005. She missed eight days in November, and in December she missed five days out of two weeks. In January 2006, she attended only two days of school. In February, she missed nine days. And in March 2006, she missed 17 days of school. She had been removed from her fathers care on March 24, 2006.

According to Stanley, Samantha cried more frequently than anyoneany other student Id ever experienced. Samantha was very depressed, and even if she did not cry, she was very sad, withdrawn, and sullen.

Stanley spoke to father at one point before the Christmas break in 2005. During their conversation, father began to get agitated. Stanley said father had many physical responses that showed his agitation. She described father as kind of like a caged animal, and that he had emotions bubbling to the surface.

Stanley formed the impression that father did not want Samantha to go to counseling based on things she heard from other people and on fathers failure to return telephone calls she made to him. She recalled that most of her meetings with father ended with some stress indicators from father. She explained father had a tendency to escalate to excitement. At one point, Stanley received a telephone call or message from father in which he said he trusted her. He told her he did not necessarily trust some of the other people, that he felt like some of them were out to get him. Stanley offered to help father find counseling for himself but he did not seem interested.

Stanley commented on one incident in which Samantha claimed to have seen the stalker drive past the school, saying that she questioned whether Samantha would have been able to see the driver well enough to identify him as the stalker. She described the distance from the school to the street as quite significant.

Cynthia Goin, a vice principal at Samanthas school, testified that Samantha always had attendance problems but that they had worsened during the prior school year. Father had told Goin that Samantha was afraid to come to school because the new boyfriend of his ex-girlfriend was stalking them.

In October 2005, Samantha was the subject of a Coordinated Care Team meeting at school. They assigned Samantha to see a counseling intern. Samantha did not need her fathers consent to see the intern the first time because the initial meeting was intended to be introductory only. When father learned that Samantha had seen a counseling intern, he became upset and yelled. He was so upset that Goin felt they needed to cool it for a little while. The Coordinated Care Team made additional efforts to approach father about counseling again before the Christmas holidays, although they were not successful.

On January 24, 2006, father gave permission for Samantha to start counseling with a social worker. However, Samantha never saw the social worker, who was funded through Medi-Cal, because the school was unsuccessful in obtaining Samanthas social security number from father.

Father called Ann Barber, a Child Welfare and Attendance Liaison, to testify on his behalf at the jurisdiction hearing. Barber testified that father had been cooperative with her efforts to assist Samantha and had not been hostile toward Samantha or her. However, Barber acknowledged that Samantha seemed depressed.

Amended Petition

At the conclusion of the jurisdiction hearing, the Bureau asked to amend the dependency petition to conform to proof. The Bureau dismissed the allegation under section 300, subdivision (b), and amended the section 300, subdivision (c) allegation as follows: The child suffers from serious emotional distress, and her father is unable to provide adequate care for the childs mental health needs in that: [] a.  The child missed most school days in October 2005 through mid March 2006 due to her fear (which she shares with her father) that she and her father are being stalked by a stranger; [] b.  On the days when the child attended school from October 2005 through mid March 2006, she was tearful, withdrawn, anxious, and depressed; [] c.  The childs father refused and/or resisted services offered by the childs school and Children and Family Services Bureau to address the childs mental health needs; and [] d.  The childs father has anger management problems which exacerbate the childs serious emotional distress.

Jurisdiction Ruling

After hearing lengthy arguments from the parties attorneys, the trial court sustained the amended petition, finding that Samantha was a dependent under subdivision (c) of section 300. The court found in relevant part that [Samantha] at the time the petition was filed was in very serious emotional distress and had been for some time. Father was unable to help her. The school had to intervene, and she was not getting the help she needed. And now she is much improved. The juvenile court declined to return Samantha to her father, stating he needed to address some of his own issues and show much greater sensitivity to the needs of his daughter before she can be returned.

In addition to sustaining the petition, the court issued a sua sponte restraining order requiring father to stay 100 yards away from Kennedy unless she requested a meeting or unless both of them were at the courthouse.

Disposition Hearing

On September 11, 2006, the juvenile court conducted a contested disposition hearing. In its report prepared for the hearing, the Bureau expressed its strong belief that Samantha would not be safe in fathers home until he had completed services outlined in his case plan. The Bureau reported he was unable to control his anger and impulses. He and his friend Vicky had instilled fear into Samantha to such an extent that she was too afraid to attend school, participate in extracurricular activities, or have friends. Once the school recognized the extent of Samanthas mental health needs, father impeded the process of getting her into counseling. Since Samanthas detention, father continued to display emotional outbursts, had inappropriate contact with Samantha, and refused to participate in services or discuss the case with Samanthas social worker without blowing up.

Kennedy, Samanthas social worker, testified at the disposition hearing. She stated that Samantha seemed much more happy than she had been at the outset of the dependency proceeding. In addition, since her 5150 hold in June 2006, her emotional state had greatly improved. Kennedy reported that father had told Samantha he was taking advantage of reunification services, although in reality he had not yet done so. Kennedy opined that a mental health assessment or evaluation was the most important thing father could do to speed along the process of returning Samantha to his care. Such an assessment would give the Bureau insight into the problem and allow them to address how to resolve the issues that gave rise to the dependency proceeding.

At the conclusion of the hearing, the juvenile court adjudged Samantha a dependent child under subdivision (c) of section 300, finding by clear and convincing evidence that Samanthas welfare required that she remain detained from her fathers care. The court further found by clear and convincing evidence that Samantha was suffering from severe emotional damage. The court adopted the recommendations and findings of the Bureau, as outlined in its disposition report. The court stated: [I]t is abundantly clear that [Samantha] was doing very, very poorly at her fathers home and that she is doing very well now. And the father has been given many opportunities to work with the [Bureau] and he has always rebuffed the [Bureau].

The court ordered a reunification plan for father. The components of fathers plan included an anger management program, individual counseling, a psychological evaluation, and a parenting class. The court maintained in place the restraining order requiring father to stay 100 yards away from Kennedy unless she requested a meeting or he was required to be in court.

Father filed a timely notice of appeal from the jurisdictional and dispositional orders.

Six-Month Review

The court conducted a six-month review hearing on December 6, 2006. In its report prepared for the review hearing, the Bureau stated that, with the exception of visits with Samantha, father had refused to participate in any of the components of his family reunification plan until one week before the Bureaus report was prepared. The Bureau stated that father had signed up for anger management and parenting classes just one week before the six-month review date but had yet to sign up for a mental health assessment.

Father maintained he had done nothing wrong and consistently stated Samantha should be returned to his care. Samantha reported that she enjoyed her visits with father and continued to seek to be returned to her fathers care. According to the Bureauand Samanthashe was adjusting well in her placement and was no longer afraid to attend school and make friends. The Bureau recommended that family reunification services be continued for father. While commenting favorably on the fact that father had finally begun the process of utilizing reunification services, the Bureau expressed its belief that until he has completed these services and a mental health assessment, he will be unable to provide a safe and chaos free environment for his daughter.

Twelve-Month Review

The juvenile court held a contested twelve-month review hearing on June 7, 2007. The Bureau reported that father had attended 20 weeks of a 52-week parenting class that addressed anger management issues. The class instructor, however, told the Bureau that fathers anger issues were beyond the scope of what the class could address. Father had refused to attend individual counseling and had never undergone a mental health assessment. Father continued to exhibit angry and impulsive behavior around Samantha and social workers. He persisted in blaming the Bureau for the fact Samantha was no longer in his care.

Although Samantha had made many friends in her new school, enjoyed going to school, and participated in social activities, she did not want her father to know she was doing well in her placement. According to Samanthas therapist, Kathy Stutz, Samantha felt responsible for her father and wanted to make him happy. Stutz described Samantha as in denial about the emotional damage her father had caused her to suffer. According to Stutz, Samanthas state of mind had similarities to someone with battered womans syndrome, which is considered a form of post-traumatic stress disorder.

Samantha testified at the review hearing, saying that she wanted to go home to her father. Samanthas social worker, Sophia Webb, testified that the main reason Samantha sought to return home was to take care of her father.

At the conclusion of the review hearing, the juvenile court terminated reunification services and set a permanency planning hearing under section 366.26. The court found that father had not made substantive progress on his case plan and that returning Samantha to her father would create a substantial risk of detriment to her. The court acknowledged Samanthas desire to return home but found that it was not safe for her to return home until father complied with the counseling component of his case plan. The court stated: It has always been imperative that father go to counseling. That was the most important piece of the case plan, and its borne out by the fact that the current provider of the anger management program does not believe theyre addressing fathers needs.

Father filed a timely writ petition pursuant to California Rules of Court, rule 8.452, challenging the courts decision to set a section 366.26 hearing. We issued an order to show cause and consolidated the writ petition with the previously filed appeal challenging the courts jurisdictional and dispositional orders. Because we believed it was necessary to resolve the jurisdictional issue presented in the appeal before the juvenile court could consider terminating fathers parental rights at a section 366.26 hearing, we issued a temporary stay of the section 366.26 hearing pending our determination of the consolidated appeal and writ petition.

Discussion

1. The Juvenile Courts Jurisdictional Findings Were Supported by Substantial Evidence.

Father contends the juvenile courts jurisdictional findings were not supported by substantial evidence. He argues there was insufficient evidence Samantha was suffering from serious emotional damage or that fathers conduct caused Samanthas emotional state. We disagree.

a. Standard of Review

We review the juvenile courts jurisdictional findings for sufficiency of the evidence. [Citations.] (In re David M. (2005) 134 Cal.App.4th 822, 828) In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.] (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) This court has neither the duty nor the right to resolve conflicts in the evidence, pass on the credibility of the witnesses, or determine where the preponderance of the evidence lies. (In re Walter E. (1992) 13 Cal.App.4th 125, 139.)

b. Samantha Suffered from Serious Emotional Damage and was at Substantial Risk of Suffering Future Serious Emotional Damage.

Father contends there was no evidence to show that Samantha suffered any serious emotional damage, at least while she was in his custody. He claims the only evidence offered to the court to show that Samantha suffered anything akin to serious emotional damage was the testimony regarding her 5150 hold, which occurred after Samantha was removed from his custody. Also, among other things, he asserts the Bureau failed to present the testimony of even one mental health professional to support the petitions allegations.

Section 300, subdivision (c) provides in relevant part that a child may come within the jurisdiction of the juvenile court if [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 or guardian . . . .

The record here contains ample evidence that Samantha suffered serious emotional damage while in her fathers custody, even before she was briefly hospitalized for a 5150 hold. Her teacher, Jacquelyn Stanley, said that Samantha cried more in school than anyone she had taught in her seven years as a teacher. According to Stanley, even when Samantha did not cry, she was still very said, withdrawn, sullen, and depressed. Cynthia Goin, a vice principal at Samanthas school, concurred that Samantha was withdrawn, very fragile, and did not outwardly present like a mainstream adolescent would. Lindsay Kennedy, Samanthas social worker, described numerous incidents in which Samantha displayed undue anxiety and emotional fragility. Even fathers witness, Ann Barber, agreed that Samantha appeared to be somewhat depressed.

Other than Samantha, each of the witnesses who testified during the jurisdiction hearing described a young girl suffering from tremendous emotional strain. The depressed, tearful, withdrawn, and anxious demeanor depicted by the witnesses demonstrated Samantha suffered from serious emotional damage. The strongest evidence of her emotional damage, however, was her own unabated and debilitating fear of the stalker. In two years, Samantha had only seen the alleged stalker several times and had received calls from him three or four times. Yet, by the time Bureau became involved in the matter, her fear of the stalker was so intense that she missed the majority of the school year.

Father argues the Bureau presented no evidence to refute fathers and Samanthas assertions about the stalker, which father contends were neither outlandish nor incredible. Instead, according to father, the Bureau sought to suggest he was delusional and that he had convinced Samantha to share in his delusion. While it is true the evidence in the record does not definitively disprove the existence of the stalker, the available evidence provides good reason to doubt there was a stalker or at least to question whether he posed the kind of risk Samantha and father feared. More importantly, even if there were a stalker, his limited contact with Samantha did not justify the debilitating reaction she suffered. Instead of attempting to resolve the stalker situation, Samantha and her father declined to call the police or to secure counseling that might have permitted Samantha to address her fears.

We reject fathers suggestion that lay testimony was insufficient to establish that Samantha suffered serious emotional damage. As an initial matter, although father complains that the Bureau offered no expert testimony, he effectively concedes that expert testimony is not a predicate to a finding under subdivision (c) of section 300. Indeed, a juvenile court need not rely on expert psychological or psychiatric evidence to support its jurisdictional findings. [E]xpert witnesses are appointed only where expert evidence is or may be required. . . . [citation], and their testimony is limited to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. . . . [Citation.] Because the matter to be determined at the jurisdictional hearing is whether a child is at substantial risk of harm at the hands of a parent, due to parental acts or inaction, if that assessment can be made within ordinary experience, no expert is necessary. (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202, fn. omitted.)

Here, there was no need for expert testimony to establish that Samantha had suffered serious emotional damage or was at risk of suffering further emotional damage. Experienced school officials and social workers alike agreed that Samantha was withdrawn, depressed, and effectively unable to attend school as a result of her condition. Under the circumstances, for purposes of a jurisdictional finding, no formal diagnosis was necessary to establish Samantha was suffering serious emotional damage while in her fathers custody.

c. Fathers Conduct Contributed to Samanthas Serious Emotional Damage and Made Him Unable to Provide Appropriate Care for Her.

Father contends the Bureau failed to show his conduct contributed to Samanthas emotional damage or that he was unable to provide for her mental health needs. We disagree. The record is replete with evidence that fathers behavior both exacerbated Samanthas emotional distress and prevented her from getting the help she needed.

The statutory scheme under subdivision (c) of section 300 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 a situation involving parental fault, the petitioner must prove three things: (1) the offending parental conduct; (2) causation; and (3) serious emotional harm or the risk thereof, as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior. (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)

It is clear from the overall scheme that the parental conduct branch of subdivision (c) seeks to protect against abusive behavior that results in serious emotional damage. We are not talking about run-of-the-mill flaws in our parenting styleswe are talking about abusive, neglectful and/or exploitive conduct toward a child which causes any of the serious symptoms identified in the statute. Abuse means [t]o ill-use or maltreat; to injure, wrong, or hurt. [Citation.] (In re Alexander K., supra, 14 Cal.App.4th at p. 559.)

Here, the evidence demonstrated that Samanthas emotional state resulted, at least in part, from her fathers conduct, which cannot be characterized as a mere flaw in his parenting style. Father encouraged Samanthas fear of the stalker. Due to his paranoid beliefs, he did nothing to alleviate her fear. Father believed people were out to get him and Samantha, and he communicated this belief to Samantha. He had problems with neighbors, Samanthas maternal grandparents, his ex-girlfriend, the police, Samanthas school, and the social workers at the Bureau. It is not surprising, given fathers perspective of the world, that he told Samantha she could not trust anyone and that all people were liars.

In addition to influencing Samantha with his own paranoid beliefs, father exacerbated Samanthas emotional distress with his anger management problems. The record offers numerous examples in which fathers explosive anger had reduced Samantha to tears or had prevented her from getting the services she needed.

Father cites In re Alexander K., supra, 14 Cal.App.4th 549, in support of his argument that the Bureau failed to establish a causal connection between his conduct and Samanthas mental state. The facts of In re Alexander K. are distinguishable from the facts in this case. In In re Alexander K., the appellate court found that the evidence focused entirely on the childs behavior and failed to demonstrate any maltreatment on the fathers part toward his son. The one instance of abusive behavior identified by the juvenile court involved domestic violence perpetrated by the father against the mother six years before the dependency petition was filed. (In re Alexander K., supra, 14 Cal.App.4th at pp. 559-560.)

Unlike the father in In re Alexander K., Samanthas father repeatedly behaved in an emotionally abusive manner toward Samantha. Furthermore, support for a finding that father caused or contributed to Samanthas condition can be found in the fact that Samanthas condition improved markedly after she left fathers care. As the juvenile court observed, [I]t is abundantly clear that [Samantha] was doing very, very poorly at her fathers home and that she is doing very well now. Thus, substantial evidence supports the juvenile courts findings that father exacerbated the emotional damage Samantha suffered and that he was unable to provide for her mental health needs.

2. The Juvenile Dependency Court Had Authority to Assert Jurisdiction over Samantha.

Father argues that Samanthas truancy problems would have been best addressed by the juvenile delinquency court instead of the juvenile dependency court. Indeed, father goes so far as to claim the dependency court lacked jurisdiction over Samantha because her problems had nothing to do with child abuse or neglect but instead resulted from her tremendous dislike of school and her unwillingness voluntarily to attend.

Subdivision (b) of section 601 addresses truancy issues and provides in relevant part that a minor who has four or more truancies within a school year and who fails to correct the problem or respond to the directives of a school attendance review board or probation officer comes within the jurisdiction of the juvenile court which may adjudge the minor to be a ward of the court. The statute clarifies that it is the intent of the Legislature that no minor who is adjudged a ward of the court pursuant solely to this subdivision shall be removed from the custody of the parent or guardian except during school hours. ( 601, subd. (b).) Father argues the plain meaning of section 601 grants the juvenile delinquency court exclusive jurisdiction over truant minors such as Samantha.

Contrary to fathers characterization of this matter as a simple truancy case, Samanthas problems extended far beyond her absence from school. Her truancy issues were just one symptom of her serious emotional damage. As the juvenile court observed, There is no doubt that this is well beyond the [school attendance review board] process. [Samantha] at the time the petition was filed was in very serious emotional distress and had been for some time. Under the circumstances, it was appropriate for the juvenile court to exercise its jurisdiction and declare Samantha a dependent of the court under section 300.

3. Substantial Evidence Supported the Juvenile Courts Finding that Returning Samantha to Her Fathers Care Would Create a Substantial Risk of Detriment to Samantha.

In his writ petition challenging the order setting a hearing under section 366.26, father argues that Samanthas desire to return to her father should have been given substantial weight. He claims the evidence submitted by the Bureau was insufficient to overcome Samanthas testimony and that she should be reunited with her father.

Our review of an order setting a section 366.26 hearing is governed by the substantial evidence standard of review. (See James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) A parents failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return of the child to that parents care would be detrimental to the child. ( 366.21, subd. (f).)

The evidence is clear that father failed to participate meaningfully in his reunification plan. By the time of the twelve-month review, father had failed to undergo individual counseling. He had also failed to submit to a mental health assessment, even though both the Bureau and the juvenile court described that aspect of his reunification plan as the most important thing he could do to ensure return of Samantha to his care. And, although he had participated in parenting classes, his instructor had commented that fathers anger issues were beyond the scope of what the class could address. At the time of the twelve-month review, father continued to exhibit angry and impulsive behaviors and persisted in blaming the Bureau for the fact Samantha was no longer in his care. Taken together, these facts constitute substantial evidence that returning Samantha to her father would present a substantial risk of detriment to Samanthas well-being.

Fathers reliance on David B. v. Superior Court (2004) 123 Cal.App.4th 768, is misplaced. In that case, the father had complied with a majority of his case plan, had cooperated with the social services agency, and had sought the assistance of the social services agency in his efforts to reunify with his child. (Id. at pp. 775-776.) Here, by contrast, father had barely begun to work on his reunification plan by the time of the twelve-month review, and he had strenuously resisted the services offered to help him reunify with Samantha.

Moreover, Samanthas expressed desire to reunify with her father did not refute the Bureaus showing that Samantha would suffer a substantial risk of detriment if she were returned to her fathers care. Father argues there was no evidence Samantha was unable to competently assess her circumstances with her father. This is incorrect. The Bureau reported that Samanthas state of mind was similar to that of a battered woman. Both her social worker and her therapist opined that Samantha was primarily motivated by her wishes to protect and please her father. The Bureau reported that Samantha sought to protect her father by telling him she was unhappy in her placement, even though was doing well, making friends, and engaged in social activities. Therefore, the juvenile court had before it substantial evidence that Samantha could not accurately assess the risk of being returned to her fathers care.

Disposition

In the appeal (A115329), the juvenile courts jurisdictional and dispositional orders are affirmed. In the writ proceeding (A118343), the petition challenging the juvenile courts order setting a section 366.26 hearing is denied, and this courts temporary stay of the section 366.26 hearing is dissolved.

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McGuiness, P.J.

We concur:

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Pollak, J.

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Horner, J.*

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

[2] A 5150 hold is a reference to section 5150, which authorizes peace officers and other designated persons to take a person into custody for treatment and observation when that person is a danger to others, or to himself or herself, as a result of a mental disorder.

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