Filed 12/5/13 In re Jade B. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
In re JADE B., a Person Coming Under the B243950
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK91195)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
WILLIAM B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County.
Jacqueline H. Lewis, Juvenile Court Referee. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
******
Appellant William B. (Father) appeals from the juvenile court’s orders denying his
motions to dismiss dependency petitions filed pursuant to Welfare and Institutions Code
section 300,1 a jurisdiction order sustaining a dependency petition under section 300,
subdivision (b), and a disposition order declaring the child Jade B. a dependent of the
court and terminating jurisdiction with a family law order giving Rebecca R. (Mother)
sole physical and legal custody and requiring that Father not contact Jade.
We affirm. Both the initial and the amended dependency petitions stated a basis
for jurisdiction under section 300, subdivision (b) on the basis of Father’s lying about and
exaggerating Jade’s medical condition and his harassment of medical professionals.
Further, substantial evidence supported jurisdiction, as the evidence showed his conduct
created a risk of harm to Jade. Finally, the juvenile court acted within its discretion in
terminating jurisdiction with a no-contact order, as Father’s conduct demonstrated that
less restrictive alternatives would not be effective to protect Jade.
FACTUAL AND PROCEDURAL BACKGROUND
Detention.
Father and Mother are the unmarried parents of Jade, born in January 2010. They
were previously involved in a family law case in Florida, where Mother filed a petition
seeking to establish paternity and Father subsequently sought full custody. They were
also parties to an open family law case in San Fernando, California. On October 24,
2011, the trial court in that action granted Mother sole legal and physical custody of Jade.
Jade came to the attention of the Los Angeles County Department of Children and
Family Services (Department) through Father’s October 26, 2011 referral alleging that
Jade had a seizure disorder and expressing Father’s concern about Mother’s ability to
care for her and provide a stable home. Two days prior to the referral, Mother had
obtained a temporary restraining order requiring Father to stay at least 100 yards away
1 Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
2
from her, Jade and other relatives.2 Approximately two weeks after the referral, Father
reported that Jade was having seizures at Mother’s home but Mother refused to take her
to a doctor. He further claimed Jade was saying “palo, palo, palo,” which meant “hit” in
Tagalog. A few days later, the Department received another referral that when Jade
returned to Father’s home from Mother’s, she was dehydrated and had a high fever.
The social worker who investigated the referrals, Amy Reitsma, found that a
number of statements Father made were false and that several medical and mental health
professionals had concerns about Jade’s well-being with Father. She reported that
Dr. Edith Hartoonian opined Father appeared to be mentally unstable and displayed
symptoms consistent with borderline personality disorder. Dr. Hartoonian had seen
Mother and Father together for counseling seven times between April and December
2011. She stated that while she saw no dysfunction in Mother, she observed Father tell
multiple lies and recommended he undergo individual therapy. Reitsma further reported
that Father’s behavior led several other medical professionals, including Jade’s
pediatrician Dr. Stephanie Whang, Dr. Michelle Thompson and Dr. Larry Sherman, to
suspect that Father made up and/or exaggerated Jade’s symptoms in order to seek
healthcare. She added that Dr. Whang and Dr. Thompson thought Father might be
displaying symptoms of Munchausen by Proxy,3 and Dr. Whang was further concerned
that Father could take deliberate action to make Jade ill.
According to Reitsma’s investigation, a public health nurse for the Department
opined, on the basis of information from Dr. Whang, that Jade suffered from febrile
seizures triggered by a fever and resolving once the fever subsided. Reitsma further
reported that Beverly Daly, a social worker for Children’s Hospital Los Angeles (CHLA),
stated Father brought Jade in on November 19, 2011, claiming she had been sick for six
2 At the conclusion of a December 8, 2011 hearing the trial court dissolved the
temporary restraining order and reinstated an existing custody and visitation order.
3 Munchausen by Proxy is a form of child abuse that occurs when a parent seeks
unnecessary medical attention for the child.
3
weeks and Mother was too mentally ill to care for her. She and Dr. Thompson
determined that Father had blown Jade’s symptoms out of proportion and found Mother
to be an appropriate caretaker. Though Daly had no safety concerns for Jade with Father,
she thought Father needed psychiatric help.
In an interview with Reitsma, Dr. Whang expressed concern that Father was
taking Jade to different doctors, misstating her symptoms and providing an inaccurate
medical history so they would do a workup on her. She felt she could not believe
anything Father said. Once on December 9, 2011, Father showed up at Dr. Whang’s
office without an appointment, stating he wanted Jade examined before any abuse
happened to her. Dr. Whang explained that Jade suffers from febrile seizures that
accompany a high fever. Such seizures do not require a neurological consultation. She
opined that Jade would grow out of them and that no medication was necessary beyond
children’s Tylenol. She added that Mother had always been able to care for Jade.
Mother was currently residing with her niece, Jennifer C., who expressed concern
about Father’s taking Jade in and out of hospitals. She further stated that even though
Mother had a restraining order against Father, he continued to harass their household.
Though acknowledging that Mother and Jennifer were concerned about Father’s
harassing behavior, Jennifer’s husband did not have any mental health concerns about
Father.
Over the course of three interviews, Mother provided some background about the
family. She and Father received a custody decree in Florida giving her full custody of
Jade and Father two weeks’ visitation per year. At one point, Father took Jade to South
Carolina and Mother ultimately flew there to retrieve her and bring her back to
California. Mother confirmed that Jade suffers from febrile seizures—five since January
2011. She stated that Jade always seemed to suffer from additional health issues when
she was with Father. She also expressed concern that Father was taking Jade to multiple
doctors, giving her dietary supplements and bathing her every time she defecated.
Mother further explained that “palo” also means “to clap hands” in Tagalog.
4
Reitsma also conducted three interviews with Father and characterized him as
being “all over the place in speech.” He expressed concern about Mother’s mental health
and Jade’s serious medical conditions. He said Mother was mentally unstable and unable
to care for Jade, and frequently returned Jade to him dehydrated. He believed Dr. Whang
had too many patients and had not properly diagnosed Jade’s condition, given that Jade
had been ill for six weeks and her fever spiked several degrees in seconds.
Medical records showed that Father had taken Jade to various doctors during late
2011. Dr. Whang diagnosed Jade as having sinusitis and prescribed antibiotics. Father
took Jade to Dr. George Stoneman on December 13, 2011; he documented that Jade had
recently recovered from an ear and sinus infection. Both Mother and Father also visited
Dr. Whang throughout 2011 for various reasons—a well baby visit, feeding problems and
Jade’s seizures.
On the basis of this information, the Department detained Jade from Father on
December 19, 2011 and placed her with Mother. On December 22, 2011, the Department
filed a section 300 petition, alleging a single count pursuant to subdivision (b) that Father
placed Jade in an endangering and detrimental situation by subjecting her to repeated
medical examinations despite receiving professional opinions to the contrary; that he
repeatedly took her to hospitals requesting that tests be performed and medications
administered; and that he gave her dietary supplements and subjected her to excessive
bathing. Mother and Father appeared at the detention hearing the same day. The juvenile
court also received Dr. Whang’s records for the hearing.
At the continued detention hearing the next day, the juvenile court acknowledged
there had been a family law order issued in Florida and that Father objected to the
juvenile court’s jurisdiction on that basis. The juvenile court made emergency findings
detaining Jade and set the matter for a hearing pursuant to section 319. It permitted
Father monitored visitation in a neutral setting. It also set the matter for a contested
detention hearing. Father thereafter filed a memorandum of points and authorities
concerning jurisdiction, arguing that all proceedings should be held in Florida because a
child custody order had been issued in that state. He also filed a “motion akin to
5
demurrer,” seeking dismissal of the section 300 petition on the ground it failed to state a
basis for juvenile court jurisdiction.
Reitsma testified at the January 3, 2012 contested detention hearing. She claimed
that she pursued removal not because Father took Jade to the doctor excessively, but
because multiple professionals expressed concerns about Father’s mental health. Given
that her testimony was based primarily on what medical professionals had told her, the
juvenile court deemed it “almost completely irrelevant” and a “waste of time.”
The next day, Dr. Whang testified. She had seen Jade approximately 10 times
since March 2011. She determined that neither a pediatric referral to a neurologist nor
medication was necessary for Jade’s febrile seizures. She became concerned about
Father after he took Jade to CHLA, reporting that she had been suffering from a fever for
six weeks. She was also concerned after Father twice came to her office without Jade,
once asking for an appointment to evaluate her, “specifically the vaginal area, because he
wanted her checked out before the abuse started,” and once seeking medical records.
Dr. Sherman testified by telephone. He was a pediatrician in Dr. Whang’s group
who saw Jade once and referred her to a pediatric neurologist. Although he thought
Jade’s condition was consistent with febrile seizures, Mother’s and Father’s different
accounts of Jade’s seizures showed the possibility of a different etiology; Mother said
Jade always had a fever with the seizures, and Father said she sometimes had seizures
without a fever. Regardless, though, he most likely would have made the referral even
for febrile seizures. He did not recall expressing concern about Father’s mental state,
though he was concerned that Mother and Father disagreed about Jade’s seizure
condition.
Father also called psychiatrist Dr. James Long, who provided a psychiatric
evaluation of Father dated January 2, 2012. Though he concluded Father suffered from
adjustment disorder with anxiety and some obsessive-compulsive personality traits, he
found that Father posed no risk to Jade.
Following argument by counsel, the juvenile court found a prima facie case for
detention, explaining that “when there is a parent that is either exaggerating or lying
6
about a child’s medical history, this Court believes it places the child in substantial
danger because a doctor can only make medical diagnoses and treatment plans based on
history.” It ordered that temporary care and placement of Jade be vested with the
Department and that she remain released to Mother. In an effort to confirm Jade’s
diagnosis, the juvenile court further ordered that she be examined by a neurologist and
permitted Mother and Father to submit Jade’s medical history in writing.
Amended Petition.
The Department filed an amended section 300 petition on January 12, 2012,
adding allegations under subdivision (a) that Father had a history of domestic violence
and emotionally abused and harassed Mother, and under subdivision (b) that Father
suffered from mental and emotional problems that placed Jade at risk, and that his history
of domestic violence placed Jade at risk.4 Simultaneously, the Department filed
opposition to Father’s motion akin to a demurrer. The trial court heard and denied the
motion as it related to the original petition. It further noted that it found good cause to
continue the jurisdiction hearing on the basis of a telephonic conference with the judge in
Florida handling Mother’s and Father’s custody dispute. Thereafter, the juvenile court
heard and denied Father’s petition for rehearing of the detention findings.
On January 20, 2012, though the Department reported that Father was now
residing in Florida and therefore could not provide a definite time frame for visitation
with Jade, he continued to participate fully in the proceedings. Between January 15 and
18, 2012, he had three, three-hour, appropriate monitored visits with Jade. In a
February 14, 2012 order, the Florida court declined to exercise jurisdiction. Thereafter,
Father walked on a request to liberalize his visitation. The Department provided
information including Father’s recent visitation schedule, a 2006 restraining order against
Father issued in favor of his ex-girlfriend’s boyfriend in Florida, a 2010 police report
concerning Father’s stalking Mother, November 2011 police reports by Mother that
4 There is no indication in the record that the juvenile court held a further
arraignment or detention hearing on the amended petition.
7
Father violated a restraining order, and a supplemental declaration previously filed by
Mother in connection with the restraining order. The Department further reported that
Mother took Jade for a neurological evaluation as directed by the juvenile court, and the
neurologist concluded Jade suffered from febrile seizures and gave no new treatment
instructions.
Jurisdiction/Disposition Report.
The Department interviewed Mother, Reitsma and Drs. Whang, Thompson and
Hartoonian for the February 15, 2012 jurisdiction/disposition report. Mother and
Reitsma confirmed the accuracy of the petition’s allegations. Drs. Whang and
Hartoonian declined further comment on the matter. Dr. Thompson described Jade’s
November 2011 admission to CHLA and expressed some skepticism about Father’s
claim she had been suffering from a fever for four to six weeks. Father declined to be
interviewed on the advice of counsel. The Department characterized Mother as a
“sincere and responsible person,” and expressed no concern about her credibility or
ability to care for Jade. On the other hand, it noted that Father had demonstrated a lack of
credibility throughout the proceedings. The Department added it had contacted other
individuals who asked not to be interviewed or quoted due to concerns about Father’s
mental health and their fear of potential subpoenas and/or lawsuits. The Department
attached court records from the Florida and San Fernando cases, Jade’s medical records,
visitation reports by Father’s monitor and letters endorsing Mother’s character and
parenting ability.
On February 22, 2012, Father filed another “motion akin to demurrer” directed to
the first amended petition. He also requested judicial notice of the records in a domestic
violence case, a child custody case and a paternity case in Florida. In addition, he filed
evidentiary objections to any and all documents the Department may seek to introduce
throughout the proceedings.
Jurisdiction Hearing.
Before the contested jurisdiction hearing began, the juvenile court learned that
during a visit that was supposed to be monitored, Father had taken Jade to Dr. Long’s
8
office for a one-hour interview so the doctor could observe the interaction between Father
and her. The juvenile court ordered that Father’s visits be monitored by Department
personnel at the Department’s offices. Also prior to the jurisdiction hearing, the juvenile
court denied Father’s motion to dismiss and overruled his evidentiary objections. The
Department also reported an interview with Dr. Hartoonian. During her seven sessions
with Mother and Father, “she observed how Mother appeared very reasonable and open
to having father actively involved with Jade. However, it became clearer that Father was
more concerned about attacking and demeaning Mother rather than working with Mother
to resolve differences.” Dr. Hartoonian also reported that Father went to her home with a
subpoena more than once and called her office pretending to be a new client. She was
fearful as a result of his behavior.
The jurisdiction hearing commenced on March 14, 2012 and continued
intermittently until mid-August 2012. At the first hearing, the juvenile court admitted
into evidence all the Department’s prior reports, subject to cross-examination of the
social worker. Mother testified that she and Father lived together for approximately eight
months after Jade was born. She described violent altercations involving Father and
Father’s emotionally abusive and harassing behavior that occurred both before and after
Jade was born. After Jade’s first hospitalization in November 2010, Father proposed they
relocate to California to start a new life and she agreed to withdraw her legal action in
Florida. Once in California, they sought counseling from Dr. Hartoonian to facilitate a
co-parenting plan.
Mother stated that Jade continued to suffer from febrile seizures, the most recent
occurring approximately one month earlier. She expressed concern about Father giving
Jade protein, whey and other supplements from the time she was an infant. She was also
concerned about Father’s giving incorrect information about Jade’s condition to medical
personnel. She testified about Father’s taking Jade to South Carolina for two weeks in
September 2011 and then refusing to return to California unless Mother agreed to meet
him in South Carolina. Mother admitted that when she went to South Carolina she spent
a few days in a resort hotel with Father and Jade before returning to California.
9
On April 9, 2012, when the juvenile court resumed the continued jurisdiction
hearing, the Department reported that Jade had suffered additional seizures and was
hospitalized. She was prescribed medication for her seizures. The Department also
reported what it characterized as harassing behavior by Father, including making repeated
calls to and visiting various Department personnel, as well as Father’s untruthful
statements to the Department and “hypervigilant” behavior regarding Jade’s health. At
the continued jurisdiction hearing on April 17, 2012, the Department reported that
doctors had differing opinions as to whether Jade should be on anti-seizure medication,
but the juvenile court denied the request to have an expert evaluate her condition.
The hearing resumed two days later; after the Department rested, Mother called
Father to testify as her only witness. He denied doing anything that would have led
Mother’s boyfriend to seek a restraining order against him, testifying that he learned of
the relationship by reading her diary and that Mother ran off with the boyfriend because
she was a “sex addict.” Father denied ever making a referral to the Department. He
denied asking Dr. Whang to give Jade a vaginal exam, but admitted he took her to see
Dr. Whang after Mother had accused him of sexually assaulting Jade in Florida. He
accused Dr. Hartoonian of lying, claiming that during their sessions the doctor had
diagnosed Mother with reactive attachment disorder. He claimed Mother lied and
physically injured herself on occasion. He denied ever going to Dr. Hartoonian’s home,
but stated he sent his friends there to serve her with a subpoena. He produced an
engagement ring he claimed to have given Mother on October 25, 2011. He admitted to
providing Jade with over-the-counter supplements and coconut water, and asking Mother
to do the same.
Father filed a section 385 petition requesting liberalized visitation, and the juvenile
court determined it would rule on the petition when it made its jurisdictional findings.
The jurisdiction hearing resumed on May 14, 2012 with testimony from social worker Jill
Kaufman who prepared the jurisdiction/disposition report. The Department reported the
same day that Jade’s physicians’ group, including Dr. Whang, would no longer provide
care for Jade because they “haven’t been able to maintain a rapport . . . due to many
10
subpoenas.” Kaufman testified that before preparing her report, she did not verify the
Florida court records provided by Mother. Dr. Thompson was the only doctor with
whom she spoke, in part because other doctors did not want to talk with her for fear of
being sued by Father. She did not look into the petition’s allegations regarding dietary
supplements and excessive baths. She discussed a recent incident in which Father had
contacted the Burbank police to report that one of the relatives with whom Mother
resided had slapped Jade; the slap was actually from another toddler at daycare. The
incident resulted in Mother’s relatives requesting that she and Jade leave their home.
The social worker then assigned to the case, Randy Slavich, also testified. He met
with Father weekly and was responsible for assuring he received reunification services.
At one point, he told Father he thought the order for one hour per week of visitation at the
Department offices was too restrictive. At the time of his testimony, he believed that
while the visits should remain monitored, Father and Jade could benefit from additional
time together because they had positive interactions. He believed that Department staff
monitoring was necessary, in part, to ensure Father refrained from making derogatory
comments about Mother in front of Jade. He also opined that Father’s mental health
issues placed Jade at risk of emotional abuse, explaining that Father’s “interaction with
the world—professionals, people that are involved in the case, people that are at my
office—are manipulative, controlling, unpredictable, emotionally inappropriate,” and that
he found shocking the “evidence of an all-around ongoing inability to interact
appropriately in the world in a way that could protect this child.” He added that the
Department had discussed adding extra security because of Father’s behavior.
Social worker Reitsma testified next regarding a risk assessment she prepared in
December 2011. Dr. Thompson, Jade’s treating pediatrician at CHLA during a
November 2011 emergency room visit, also testified. She ordered that Jade be given
intravenous fluids because she received a history that Jade had not been drinking
appropriately; she did not personally observe symptoms associated with dehydration.
She did not recall telling Daly that she suspected Father suffered from Munchausen. She
11
is a mandated child abuse reporter and did not make any report of suspected abuse by
Father.
When the jurisdiction hearing resumed, the Department offered letters showing
that Father had been attending anger management and domestic classes, and the juvenile
court permitted Father’s visitation to increase to two times per week. CHLA social
worker Daly testified that when Father brought Jade to CHLA in November 2011, she
contacted the Department because she knew there was an ongoing investigation. She did
not have any safety concerns for Jade with Father and did not see evidence of abuse.
Father did, however, exaggerate Jade’s condition when they arrived at CHLA. She
observed that Father appeared to be afraid of losing Jade given his relationship with
Mother. Father was anxious and aggressive, and Daly felt more comfortable talking with
him in public areas.
On June 14, 2012, the Department provided the juvenile court with two items.
First, it provided a copy of a May 2012 order of dismissal in the Florida family law
matter on the ground that California was a more appropriate forum. The order noted
instances where the court had found Father not credible. Second, the Department
reported an interview with Jade’s paternal grandmother, in which she stated she thought
Jade’s placement should be with Mother, not Father. Though stating she loved her son,
she thought he was manipulative and would be that way with Jade; she knew he told
stories about Mother and Jade that were untrue, such as that Mother joined a cult and
Jade had bruises all over her; and she believed he exercised poor judgment. On the other
hand, she believed Mother was a good mother to Jade. One week later, the Department
reported that Father had threatened the paternal grandmother and urged her to retract her
statements. She subsequently retracted any negative statements about Father.
Several doctors testified. Dr. John Peric saw Jade with Mother and Father during
a mid-November urgent care visit. Jade was suffering from a fever, cough, congestion
and dehydration, though her lab results were inconclusive for dehydration. He could not
recall that Jade showed any signs of abuse or that he thought Father had placed her at
risk. Dr. Robert Casey saw Jade at the Henry Mayo Newhall Memorial Hospital in
12
mid-November 2011; she presented with a cough and fever and he ordered a chest X-ray.
He diagnosed her as having pneumonia. He did not observe that Father’s behavior
warranted a child abuse referral. Testifying telephonically, Dr. Anna Law stated she saw
Jade at Lakeside Community Health Care, an urgent care center, in April 2012 after Jade
had suffered two seizures with a fever and vomited twice. She ordered that Jade be
transported by ambulance to a hospital emergency room for further evaluation and
treatment.
Pediatric neurologist Dr. Nancy Niparko saw Jade twice during the first half of
2012. She reviewed Jade’s April 2012 EEG which was abnormal because of the presence
of seizure discharges. She diagnosed Jade as having simple febrile seizures and her
prognosis was that the condition would resolve in one or two years. She received Jade’s
medical history from Mother only. She recommended that Jade not take the
anticonvulsant medication prescribed by another pediatric neurologist, Dr. Andrea
Morrison. Dr. Jason Lee saw Jade after she had been admitted to the hospital in April
2012. He did not recall that Jade had a fever at the time of her EEG, and the results of
the EEG showed she had some seizure discharges. He did not know whether that meant
she had seized during the EEG. He conveyed to Father Dr. Morrison’s reason for giving
Jade medication, which was that she anticipated future seizure activity and hoped to
reduce it.
Father called two witnesses who had observed Mother and Father together in
public, acting appropriately. One of the witnesses, however, testified about an occasion
where he heard Mother yell “help, help” and then hit Father. Father also called Stella
Markova, a psychiatric social worker with the Los Angeles County Department of Mental
Health who had participated in a team decision meeting with Father in December 2011.
She denied providing the mental health diagnosis of Father that was attributed to her in
the jurisdiction/disposition report.
Before the jurisdiction hearing resumed in late July 2012, Jade suffered another
seizure while at her daycare facility. Daycare staff called 9-1-1 and Jade was transported
to a hospital where she presented with a fever over 104 degrees and then had two or three
13
more seizures. Mother told hospital staff that Jade had a fever the night before the initial
seizure which she had treated with Tylenol. The hospital treating physician contacted
Dr. Morrison, who recommended that Jade be prescribed anti-seizure medication, and
Dr. Niparko, who disagreed with the recommendation. The treating physician
recommended to Mother that she give Jade the anti-seizure medication, but also consult
another neurologist for a third opinion.
A few days later the Department reported concerns with Father’s visitation, noting
that he would become upset if Jade did not want to engage in an activity he planned, he
was quick to think the worst (mistaking Jade’s saying “peanut” and accusing her of
saying “penis”), and he continued to “grill” Jade about marks or bruises on her body.
The Department further noted it had received three referrals alleging physical abuse of
Jade by Mother, all deemed unfounded. It recommended that Father’s monitored visits
occur in a therapeutic setting. The juvenile court agreed with the recommendation,
noting that it came close to terminating Father’s visitation.
Dr. Morrison next testified on July 24, 2012. She opined that Jade had a seizure
disorder that manifested when she had fevers, and thought it was uncommon for her to
not take medication for her condition. She opined Jade had epilepsy, which meant she
had a tendency to have seizures. She further opined that while fever seemed to provoke
Jade’s seizures, her EEG suggested she could also have unprovoked seizures. She
repeatedly stated that Jade should be on medication. She testified it would not be
inappropriate for Jade to have a CT scan or an MRI.
Father called psychologist Dr. Michael Peck, who testified he examined Father
and concluded he did not suffer from the mental disorder Munchausen by Proxy.
Father’s friend and roommate Bounmy Somchay also testified, stating he saw Mother hit
and curse at Father. On July 26, 2012, the Department reported that Mother had taken
Jade to the doctor for a rash and fever, and Jade was hospitalized overnight after suffering
another seizure.
Pediatric neurologist Dr. Charles Niesen testified as an expert on Father’s behalf.
He opined that Jade should be on anti-seizure medication because of the multiple seizures
14
she suffered. The dangers arising from failing to medicate included Jade falling and
hurting herself during a seizure, suffering brain injury from a prolonged seizure and her
brain development being compromised by multiple seizures. He opined that Jade’s
recent seizure activity underscored the nature of her disorder. He added it would not be
inappropriate for Jade to have coconut water or other pediatric supplements, nor would it
be inappropriate for her to have a CT scan and an MRI. He also believed that many
parents exaggerate their child’s symptoms and opined that Father did not do anything
more than any other parent would try to do under the circumstances. The juvenile court
directed Mother’s counsel to discuss Dr. Niesen’s testimony with Mother to ascertain her
position about changing neurologists and/or treatment for Jade.
On August 2, 2012, the Department submitted records from Jade’s recent hospital
stay, redacting the name of her new pediatrician in view of Father’s previous harassment.
The report indicated the treating physician had started Jade on anti-seizure medication
and recommended that Mother take Jade to the UCLA pediatric neurology group for
evaluation. The same day, Father called additional witnesses, including marriage and
family therapist Dr. Ian Russ who testified about ethical violations by social workers and
other therapists involved in the case; and marriage and family therapist Dr. Kendall
Evans who testified he saw no evidence that Father engaged in domestic violence against
Mother and was troubled that the Department did not question Mother’s veracity.
Father testified. He estimated he had taken Jade to see a doctor approximately six
times. He also described the counseling and parenting classes in which he had
participated throughout the course of the pending jurisdiction proceedings. He noted that
since the dependency proceedings had begun, Jade had bruises and reported to him that
Mother had hit her, and during one visit she also had hundreds of boils on her legs. At
the conclusion of his testimony, the Department confirmed that Jade had been placed on
anti-seizure medication. However, on August 12, 2012, Dr. Niesen wrote a letter to
express his concern that Mother had not followed up on Jade’s neurology appointment.
On August 14, 2012, the Department submitted last minute information expressing
concern that Father continued to inspect Jade for bruises and marks during every visit.
15
After hearing argument from counsel, the juvenile court made its jurisdictional findings
the same day. The juvenile court amended and sustained count b-1 of the petition
regarding Father’s lying about and exaggerating Jade’s medical condition, and dismissed
the remaining allegations. In connection with its findings, the juvenile court noted that
while at first blush it might appear that Father was simply trying to make sure Jade
received appropriate medical care, “when you hear all of the witnesses, . . . you realize
that Father’s actions really had nothing to do with Jade and everything to do with him. In
15 years of sitting on the bench, 22 years of doing dependency, I have never seen
someone as controlling as [Father].” The juvenile court continued: “From what I could
see in the testimony, [Father] exaggerated or lied about, every time he went in, what was
going on with Jade. And to say that that is not dangerous to subject your child to more
intrusive medications, to more intrusive tests, et cetera, is not harmful to the child is
not—is incorrect. Doctors rely on what parents tell them. They rely that that is accurate,
unbiased information. And here Father lied about or exaggerated Jade’s condition and
has subsequently subjected her to examinations, based on allegations against the Mother,
consistently, for nine months.”
Disposition.
At the conclusion of the jurisdiction hearing, the juvenile court stated that its
tentative disposition order would be to terminate jurisdiction with a family law order
giving sole physical and legal custody to Mother and a no-contact order for Father. Prior
to the hearing, the Department submitted a supplemental disposition report making
recommendations consistent with the juvenile court’s tentative disposition. The
Department noted that Father’s behavior had become more bizarre and inappropriate
during the past several months and identified several categories of concern: Between
May and August 2012, Father made five unfounded referrals that Mother was neglecting
or abusing Jade; Father was obsessed with finding bruises or marks on Jade during visits,
and blamed Mother for both physical abuse and for Jade’s expression of interests that did
not coincide with Father’s; Father’s referrals resulted in Mother having to move from her
relatives’ home; Father continued to report exaggerated symptoms to the Department (for
16
example that Jade had “hundreds of boils”) and continued to harass her current doctors;
and in August 2012 Father’s therapist contacted the police to report Father’s allegation
that Mother was abusing Jade. Conceding that its no-contact recommendation was
extreme, the Department also pointed out Father’s history of restraining orders involving
other individuals, suggesting a pattern of destructive behavior.
At the August 27, 2012 disposition hearing, the juvenile court admitted the
Department’s prior reports and service logs into evidence. Registered nurse Kathy
Wright testified Dr. Whang asked her to write the letter indicating the medical group
would no longer treat Jade, noting that office personnel perceived Father’s behavior as
threatening. Social worker Kaufman testified that Father’s behavior posed a risk to Jade,
characterizing him as being out of control and his hypervigilance being disruptive to
Jade. She stated that all the information she gleaned from those involved in the case
showed that Father was focused on proving Mother was abusive and neglectful toward
Jade, while the Department had seen no evidence to support that concern. Father called
social worker Gayane Manukyan, who responded to Father’s request during an August
2012 visit that Jade’s feet be examined for bruises. She took Jade to a nurse, who
observed some dead, peeling skin on Jade’s feet. She advised that a doctor take a look at
Jade, but added it was not an emergency situation. Human Services Aid Shamar
McDowell monitored approximately 10 visits between Father and Jade, and observed
positive interaction between the two. She further observed, however, that Father would
harass Jade during the visits and try to elicit negative information about her living with
Mother. She also noted that during a recent visit that Father was videotaping, he grabbed
Jade’s arm and put it in front of the camera, pointing out a bruise. She added that during
every videotaped visit Father would attempt to get Jade to play to the camera.
Father also called a therapist who led his anger management group, who testified
Father had benefitted from the services he had been receiving. The facilitator of Father’s
batterers’ intervention and anger management classes testified Father had learned some
effective communication and stress reduction techniques. Another anger management
facilitator testified that Father seemed calmer now than when he began his anger
17
management classes. Father submitted two declarations from individuals who had
observed positive interaction between Jade and him. Father testified, describing the
programs in which he was participating and stating he was willing to do whatever was
necessary to reunify with Jade. During cross-examination, Father noted that he was
attending a domestic violence program because he believed he was the victim of
domestic violence, as there were several occasions when he was attacked in his sleep and
while he was awake.
Following counsel’s arguments, the juvenile court declared Jade a dependent of
the court under section 300, subdivision (b) and found there were no reasonable means to
protect her absent removal from Father’s custody. Consistent with its tentative ruling, the
juvenile court terminated jurisdiction with a family law order giving Mother sole physical
and legal custody of Jade and requiring that father have no contact with her. The juvenile
court explained that in making the no-contact order—its first ever—it took into account
both Jade’s physical and emotional safety, and determined the order was the only way to
protect Jade from future harm. It noted that it also considered that Father refused to abide
by the safeguards it had put into place to effect visitation between Father and Jade.
Summarizing, the juvenile court stated: “It is clear to me that no court order, no
recommendation by a professional, and not even Jade’s interest—best interest or her
wishes can in any way get through to this father to take actions that do not put Jade at
great risk. And that is why this court can do nothing else in this particular case other than
to order a no-contact order for her.”
Father appealed.
DISCUSSION
Father contends the juvenile court should have dismissed the initial and amended
petitions, substantial evidence did not support the jurisdiction order, and the disposition
order removing Jade from his custody and requiring he not contact her was an abuse of
discretion. We find no merit to his contentions.
18
I. The Petitions Stated a Basis for Jurisdiction Under Section 300,
Subdivision (b).
In dependency proceedings, the parent of the child has a fundamental due process
right to notice of “‘the specific factual allegations against him or her with sufficient
particularity to permit him or her to properly meet the charge.’ [Citation.]” (In re Fred J.
(1979) 89 Cal.App.3d 168, 175, italics omitted.) A dependency petition must contain a
“concise statement of facts, separately stated, to support the conclusion that the child
upon whose behalf the petition is being brought is a person within the definition of each
of the sections and subdivisions under which the proceedings are being instituted.”
(§ 332, subd. (f).) In other words, “the role of the petition is to provide ‘meaningful
notice’ that must ‘adequately communicate’ social worker concerns to the parent.
[Citation.] If the parent believes that the allegations, as drafted, do not support a finding
that the child is ‘within’ one of the descriptions of section 300, the parent has the right to
bring a motion ‘akin to a demurrer.’ [Citation.]” (In re Jessica C. (2001) 93 Cal.App.4th
1027, 1037; accord, In re S. O. (2002) 103 Cal.App.4th 453, 460.)
When the sufficiency of a petition filed under section 300, subdivision (b) is
challenged on review, we construe the well-pleaded facts in favor of the petition to
determine whether the Department pleaded facts to show that Father did not supervise or
protect the children within the meaning of section 300, subdivision (b). (In re Janet T.
(2001) 93 Cal.App.4th 377, 386; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133.)
A facially sufficient petition “does not require the pleader to regurgitate the contents of
the social worker’s report into a petition, it merely requires the pleading of essential facts
establishing at least one ground of juvenile court jurisdiction.” (In re Alysha S. (1996) 51
Cal.App.4th 393, 399–400.)
Here, the initial petition alleged: “On numerous occasions in 2011, the child,
Jade[‘s] father, [], placed the child in an endangering and detrimental situation by
subjecting the child to repeated medical examination and has continued to request the
child to be checked by a neuropathologist, despite the father being told, by the medical
professionals treating the child, that the child has febrile seizures and not a seizure
19
disorder. The father repeatedly takes the child to hospitals and requests that intravenous,
various procedures and medications be administered to the child. On 11/15/11, the father
requested that a CAT scan being formed [sic] on the child and insisted upon the child
being admitted to a hospital for an upper respiratory infection. The father gives the child
dietary supplements and subjects the child to multiple bathes [sic] during the father’s
visitations with the child. Such an endangering and detrimental situation established for
the child by the father endangers the child’s physical health and safety and places the
child at risk of physical harm, damage and danger.”
These allegations were sufficient to bring Jade within the ambit of section 300,
subdivision (b), which requires: “(1) neglectful conduct by the parent in one of the
specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a
‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814,
820.) According to the allegations, Father’s subjecting Jade to unnecessary medical
examinations and hospitalizations created a serious risk of both physical and emotional
harm to Jade. Subjecting a child to unnecessary medical treatment constitutes conduct
that warrants jurisdiction under section 300, subdivision (b). (See In re Kamelia S.
(2000) 82 Cal.App.4th 1224, 1226 [though disentitlement doctrine barred appellate
review, juvenile court sustained supplemental petition alleging the father had subjected
the child to unnecessary medical treatment].)
In asserting the petition failed to allege a basis for jurisdiction, Father segregates
each allegation and argues that each action—viewed alone—was insufficient to support
jurisdiction. But it is of no consequence that a single action would be inadequate to
support jurisdiction given that the petition alleged multiple acts giving rise to a risk of
harm. Construing the well-pleaded fact in favor of the petition, we conclude that the
totality of the circumstances alleged were sufficient to show that Jade was at risk. (See
In re J.K. (2009) 174 Cal.App.4th 1426, 1440 [determining substantial risk in view of the
totality of the circumstances].)
Nor do we find any similarity between the conduct in the cases relied on by Father
and the conduct alleged in the initial petition. For example, in In re James R. (2009) 176
20
Cal.App.4th 129, 136, the court found that the mother’s history of instability, coupled
with an isolated negative reaction to drinking beer and taking ibuprofen, was insufficient
to show how the children were at risk. Similarly, the court in In re David M. (2005) 134
Cal.App.4th 822, 830 found no basis for dependency jurisdiction where there was no
evidence that the mother’s limited marijuana use and history of mental health issues
caused or created a specific risk to the child. (See also In re Alysha S., supra, 51
Cal.App.4th at p. 400 [allegation that one year earlier the father had touched the infant’s
buttocks and vaginal area in a manner the mother viewed as inappropriate insufficient to
support jurisdiction].) Here, the petition alleged facts showing that Father had engaged in
a course of conduct that placed Jade at risk, including his repeatedly taking Jade to the
hospital, seeking additional treatment against the advice of medical professionals and
requesting that medical tests be performed on her and that she be hospitalized. The
petition adequately alleged the essential facts supporting jurisdiction under section 300,
subdivision (b).
Our conclusion that Father’s motion akin to a demurrer was properly denied
effectively disposes of Father’s contention directed to the amended petition, as he claims
the additional allegations were insufficient to support jurisdiction. Briefly, in the
amended petition the Department added allegations under section 300, subdivisions (a)
and (b) that Mother’s and Father’s history of domestic violence, including incidents
where Jade was present, and Father’s continued stalking and harassment of Mother
placed Jade at risk; it also modified the initial allegation under subdivision (b) to omit
any allegations concerning supplements and bathing. The Department further alleged
under section 300, subdivision (b), that Jade was at risk from Father’s mental and
emotional problems and anger management issues which had manifested themselves
through Father’s lying about and exaggerating Jade’s medical condition and blaming
Mother for her condition.
Contrary to Father’s assertion that allegations of domestic violence, without more,
are an insufficient basis for jurisdiction, it is well established that “[e]xposure to domestic
violence may serve as the basis of a jurisdictional finding under section 300,
21
subdivision (b). . . . ‘“[D]omestic violence in the same household where children are
living . . . is a failure to protect [the children] from the substantial risk of encountering the
violence and suffering serious physical harm or illness from it.” [Citation.] Children can
be “put in a position of physical danger from [spousal] violence” because, “for example,
they could wander into the room where it was occurring and be accidentally hit by a
thrown object, by a fist, arm, foot or leg . . . .” [Citation.]’ [Citation.] . . . ‘“Both
common sense and expert opinion indicate spousal abuse is detrimental to children.”
[Citations.]’” (In re R.C. (2012) 210 Cal.App.4th 930, 941–942; see also In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599 [allegations of domestic violence may
support jurisdiction under § 300, subd. (a)].) Also contrary to Father’s assertion, the
allegation concerning Father’s mental and emotional problems was directly tied to a risk
of harm to Jade created by his lying about and exaggerating her medical problems.
The factual allegations in the amended petition both established a basis for
juvenile court jurisdiction and sufficiently provided Father with adequate notice of the
specific facts on which the petition was based. The juvenile court properly denied
Father’s second motion akin to a demurrer.
II. Substantial Evidence Supported the Juvenile Court’s Jurisdiction Order.
We review the juvenile court’s jurisdictional findings under the substantial
evidence standard. (In re E.B. (2010) 184 Cal.App.4th 568, 574.) Pursuant to this
standard, we determine whether there is any substantial evidence, contradicted or
uncontradicted, to support the juvenile court’s determination. (In re Tracy Z. (1987) 195
Cal.App.3d 107, 113.) “[W]e draw all reasonable inferences from the evidence to
support the findings and orders of the dependency court; we review the record in the light
most favorable to the court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th
183, 193.)
Jurisdiction is appropriate under section 300, subdivision (b) where there is
substantial evidence that “[t]he 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
22
his or her parent or guardian to adequately supervise or protect the child . . . .” As
outlined earlier, three elements must exist for a jurisdictional finding under section 300,
subdivision (b): “‘(1) neglectful conduct by the parent in one of the specified forms;
(2) causation; and (3) “serious physical harm or illness” to the minor, or a “substantial
risk” of such harm or illness.’ [Citation.] ‘The third element “effectively requires a
showing that at the time of the jurisdiction 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). [Citations.]”’” (In re J.O. (2009) 178 Cal.App.4th 139,
152; see also In re S. O., supra, 103 Cal.App.4th at p. 461 [“‘[P]ast conduct may be
probative of current conditions’ if there is reason to believe that the conduct will
continue”].)
The juvenile court sustained the following allegation under section 300,
subdivision (b): “The father, William [B.], has displayed bizarre and obsessive behaviors
which place the child Jade [B.] at risk of physical and emotional harm. Such behaviors
have included lying about and exaggerating Jade’s medical conditions and symptoms to
justify his requests for or a resulting need for unnecessary, intrusive and sometimes
painful medical tests for the child, Jade. Father’s behaviors also including stalking the
child Jade’s mother, Rebecca [R.], as well as various medical professionals and
witnesses. The harassment of some of the medical professional has resulted in those
medical professionals being unwilling to treat Jade any longer. Father has been unable to
refrain from such behaviors in spite of court orders, requests of professionals or Jade’s
needs and best interests.” At the conclusion of the jurisdiction hearing, the juvenile court
concluded that Father’s lying about and exaggerating Jade’s symptoms placed her at risk,
observing that doctors necessarily rely on what parents tell them about their child’s
condition.5
5 In view of the juvenile court’s express finding that Jade remained at risk of serious
physical harm, we find no merit to Father’s argument that the court’s findings were
improperly premised on a risk of emotional harm. (See In re Daisy H. (2011) 192
23
The evidence showed that from the time the matter came to the Department’s
attention to the time of the jurisdictional findings almost 10 months later, Father
exhibited behavior that “really had nothing to do with Jade and everything to do with
him.” When Father brought Jade to CHLA in mid-November 2011, he falsely claimed
that she had been running a fever for six weeks and that Mother was too mentally ill to
care for her. At CHLA, Jade received fluids intravenously on the basis of Father’s
representation that Jade had not been drinking properly; Jade’s attending physician never
observed symptoms associated with dehydration. During the jurisdiction hearing, Mother
confirmed that on at least three occasions when Father took Jade to the hospital, she
discovered he had misrepresented Jade’s history to medical personnel. Dr. Sherman, part
of Jade’s former pediatric group, expressed concern that Father offered a different
description of Jade’s seizures than Mother. Father brought Jade to Dr. Whang’s office in
early December 2011 without an appointment, seeking a vaginal examination for Jade
before any abuse happened to her. During what was supposed to be an hour-long
monitored visit, Father took Jade to Dr. Long’s office for an interview so the doctor could
observe her interaction with Father.
Though the evidence showed that Jade suffered from a seizure condition and that
doctors disagreed about the appropriate course of treatment, there was evidence that
much of Father’s conduct had nothing to do with her seizures. For example, Father
contacted medical personnel when Jade exhibited flushed cheeks; he testified that he
observed Jade suffering from multiple bruises and pinch marks at the hands of Mother, as
well as hundreds of boils on her skin; and even through August 2012 he continued to
inspect Jade for bruises and marks during every visit. For example, during an August 3,
2012 visit, Father saw two small bruises on Jade’s arm; he grabbed her arm and placed it
in front of the camera that he used to record the visit and described what he saw. During
Cal.App.4th 713, 718 [dependency law does not support jurisdiction on the ground of
“‘emotional harm’”].)
24
an August 10, 2012 visit, Father called in a social worker to inspect bruises on Jade’s shin
that appeared to be a few days old and were fading away.
In connection with the allegations concerning Father’s harassment of others,
Dr. Hartoonian reported that Father came to her home, not her office, with a subpoena
and telephoned her office pretending to be a new client. Father’s harassment of
Dr. Whang resulted in her no longer providing care for Jade. Father falsely reported that
one of the relatives with whom Jade was residing had slapped her, resulting in Mother
and Jade having to move from the home. The juvenile court could reasonably infer that
evidence of Father’s harassment and alienation of medical professionals and others who
cared for Jade constituted conduct that also placed her at risk of physical harm. (See
In re S.C. (2006) 138 Cal.App.4th 396, 415 [appellate court accepts every reasonable
inference that the juvenile court could have drawn from the evidence].)
Father argues the evidence was insufficient to show he either misrepresented
Jade’s symptoms or sought unneeded treatment, emphasizing that the evidence showed
some doctors agreed that Jade’s seizure treatment was inadequate. He contends that
seeking a second opinion does not warrant jurisdiction under section 300, subdivision (b).
But his argument rests only on the evidence that was favorable to his position, and
ignores the evidence on which the juvenile court relied to conclude he posed a risk of
harm. “‘A party who challenges the sufficiency of the evidence to support a particular
finding must summarize the evidence on that point, favorable and unfavorable, and show
how and why it is insufficient. [Citation.]’” (Schmidlin v. City of Palo Alto (2007) 157
Cal.App.4th 728, 738, italics omitted.) Indeed, the juvenile court acknowledged that its
initial impression of the case was consistent with Father’s characterization of his conduct.
Observing that most parents want what is best for their children, the juvenile court
commented that “at first blush, that’s what this case looks like. It looks like a really good
parent doing everything [he] can to make sure [his] child gets the right medical care.”
But the court went on to conclude that when it continued to look at the case, it saw
something different. It saw Father as controlling and misrepresenting Jade’s symptoms
for the purpose of getting back at Mother, without regard to the consequences to Jade. It
25
noted that Father’s characterization of Jade’s condition differed from that to which
doctors testified, and specifically relied on evidence showing that Jade had received
intravenous treatment solely on Father’s representation of her condition—a
representation it found untrustworthy. It is not our role to reassess the credibility of
witnesses or reweigh the evidence. (E.g., In re C.B. (2010) 190 Cal.App.4th 102, 127.)
Father also argues there was insufficient evidence to show he stalked or harassed
medical professionals and other witnesses. The evidence conflicted to a certain extent,
with Father’s testifying that it was his friend—not he—who had gone to Dr. Hartoonian’s
home. Notwithstanding this testimony, other evidence demonstrated that Dr. Hartoonian
observed Father at her home, and other medical professionals and Department employees
provided statements concerning Father’s harassing behavior. Father completely ignores
evidence showing he harassed Mother’s cousin when he made a false police report that
the cousin had hit Jade, notwithstanding Jade’s statements that a boy at her daycare had
hit her. Further, the evidence showed that his conduct placed Jade at risk of physical
harm by limiting the doctors who would agree to treat her and by requiring her to move
from her home.
Finally, Father argues the evidence was insufficient to show that Jade remained at
a risk of harm at the time of the jurisdiction hearing. (See In re Janet T., supra, 93
Cal.App.4th at p. 388 [under § 300, subd. (b), “‘the past infliction of physical harm by a
caretaker, standing alone, does not establish a substantial risk of physical harm, “[t]here
must be some reason to believe the acts may continue in the future”’”].) He argues
evidence showing that Jade had begun to receive medication for her seizures showed she
was no longer at risk. But the evidence further showed that within 10 days of the
jurisdictional findings Father continued “to actively look for bruises on Jade,” insist that
medical professionals examine her for every mark and attribute Jade’s condition to
Mother’s abuse. As summarized by the court in In re Jasmon O. (1994) 8 Cal.4th 398,
424, a parent’s past behavior can be used for predictive purposes, as “‘a measure of a
parent’s future potential is undoubtedly revealed in the parent’s past behavior with the
child.’” There was no evidence to suggest that Father’s behavior would change, even
26
though Jade had been placed on anti-seizure medication, and the juvenile court found him
“incapable of changing his behaviors in regards to what Jade’s best interest[] is.” “The
court need not wait until a child is seriously abused or injured to assume jurisdiction and
take the steps necessary to protect the child. [Citations.]” (In re R.V. (2012) 208
Cal.App.4th 837, 843.) Substantial evidence supported the juvenile court’s determination
that Jade remained at risk at the time it assumed jurisdiction over her.
III. Substantial Evidence Supported the Removal of Jade From Father’s Custody
and the Juvenile Court Acted Within Its Discretion in Entering A No-Contact
Order.
A. Removal Order.
The juvenile court ordered Jade removed from Father’s custody pursuant to
section 361, subdivision (c)(1), which provides that a dependent child may not be taken
from the physical custody of the parents unless the juvenile 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
. . . physical custody.”6 A removal order is proper if it is based on proof of parental
inability to appropriately care for the child, as well as proof of a potential detriment to the
child if he or she remains with the parent. (In re Diamond H. (2000) 82 Cal.App.4th
1127, 1137, disapproved on another ground in Renee J. v. Superior Court (2001) 26
Cal.4th 735, 748, fn. 6.) The parent’s level of denial is an appropriate factor to consider
when determining the risk to the child if placed with that parent. (In re Esmeralda B.
(1992) 11 Cal.App.4th 1036, 1044 [denial is a factor often relevant to determining
6 Though the Department reported Mother and Father had a Florida custody decree
awarding Mother full custody of Jade and Father two weeks’ annual visitation, the
evidence suggested that Jade spent more than two weeks per year in Father’s custody. In
any event, neither Father nor the Department has challenged the juvenile court’s treating
Father as a custodial parent for purposes of the disposition order.
27
whether persons are likely to modify their behavior in the future without court
supervision].) Because the focus of the statute is on averting harm to a child, the parent
need not be dangerous and the child need not have been actually harmed before removal
is appropriate. (In re Cole C. (2009) 174 Cal.App.4th 900, 917; In re Diamond H., supra,
at p. 1136.)
We apply the substantial evidence test to challenges to a disposition order
removing a child from a parent. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th
1067, 1078; see In re Mark L. (2001) 94 Cal.App.4th 573, 580–581 [although juvenile
court makes findings by the elevated standard of clear and convincing evidence,
substantial evidence test remains the standard of review on appeal].) As with the
jurisdictional findings, we view the evidence in the light most favorable to the juvenile
court’s determination, drawing all reasonable inferences in favor of the determination,
and we affirm the order even if there is other evidence supporting a contrary conclusion.
(In re Heather A., supra, 52 Cal.App.4th at p. 193.) Father bears the burden of showing
there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L.
(2002) 101 Cal.App.4th 942, 947.)
Substantial evidence supported the removal order, as it showed that Father’s
conduct continued to pose a substantial danger to Jade. The evidence demonstrated both
an “identified, specific hazard” and that Jade was “of such tender years that the absence
of adequate supervision and care poses an inherent risk to [her] physical health and
safety.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824, italics omitted.) Even in the
context of monitored visitation, Father continued to obsessively inspect Jade for marks or
bruises, intent on finding something to support his accusations of physical abuse against
Mother. At the disposition hearing, social worker Kaufman testified about the effect of
Father’s behavior on Jade, describing an instance when Jade had drawn on herself with a
marker and said “look, bruises.” She also observed Jade’s increasing agitation when
Father would complain about Mother or the Department in front of her. She stated that
Father would become frustrated when Jade did not do as asked, and explained that while
28
his reaction to a stubborn toddler was not necessarily atypical, it raised concerns in light
of his other behaviors.
Even at the disposition hearing, Father failed to acknowledge that his behavior
posed any risk to Jade. Though he outlined the number of classes he had been attending
for anger management and domestic violence, he insisted he was attending as a victim,
not a perpetrator. When asked whether he had lied about or exaggerated Jade’s
symptoms, or whether he had stalked the medical professionals treating her, he kept
repeating that he was willing to accept the court’s findings and said nothing more. In
view of this evidence, the juvenile court could reasonably conclude that Father had done
nothing to alleviate the conditions that posed a risk to Jade. (See In re Jessica B. (1989)
207 Cal.App.3d 504, 517 [substantial evidence supported removal where the father’s
“failure to admit fault indicates that he is neither cooperating nor availing himself of the
services provided”].)
Contrary to Father’s argument, the evidence further demonstrated that less
restrictive alternatives to removal were not available. Even in the context of limited and
monitored visitation with Department supervision, Father improperly took Jade to a
psychologist for observation, continued to inspect her for bruises while playing to the
video camera, brought friends to the visits and made derogatory comments about Mother
and the Department in front of Jade during the visits, and made five recent referrals about
Mother abusing Jade. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1658 [citing as a
factor supporting removal that “the mother appears to be unable to avoid, and indeed
often provokes, angry confrontations with other people while in the company of her
daughter”].) In its supplemental disposition report, the Department wrote: “Those who
have had the opportunity at [the Department] to evaluate this case with information from
mother, child Jade, other members of [the Department] staff and collaterals (such as
doctors, therapists, Dept. of Mental Health representatives) have developed serious
concerns regarding child Jade’s welfare based on father’s relentless behavior and
actions.” Substantial evidence supported the juveniles court’s conclusion that less
restrictive alternatives were not viable.
29
B. No-Contact Order.
Beyond ordering Jade removed from Father’s custody, the juvenile court further
terminated jurisdiction with a family law order giving Mother sole legal and physical
custody of Jade and imposing a no-contact order as to Father. When the juvenile court
terminates jurisdiction in a dependency case, it is empowered to make “exit orders”
regarding custody and visitation. (§ 362.4;7 In re Chantal S. (1996) 13 Cal.4th 196, 202–
203.) The juvenile court is not constrained by any preferences or presumptions in
fashioning exit orders pursuant to section 362.4, and therefore no specific finding is
required to restrict visitation. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712; see also
In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) Rather, the juvenile court has broad
discretion to make an exit order that serves the child’s best interests. (In re Chantal S.,
supra, at p. 201; In re Stephanie M. (1994) 7 Cal.4th 295, 318–319; In re Jennifer R.,
supra, at p. 712.) “[T]he juvenile court has a special responsibility to the child as parens
patriae and must look at the totality of the child’s circumstances” in determining the
child’s best interests. (In re Roger S. (1992) 4 Cal.App.4th 25, 30–31.)
We review an exit order for an abuse of discretion and will not disturb such an
order “‘“unless the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination.”’” (In re Stephanie M., supra, 7
Cal.4th at p. 318; accord, Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300;
In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) The test for abuse of discretion is
whether the juvenile court exceeded the bounds of reason. If two or more inferences can
reasonably be deduced from the facts, we may not substitute our decision for that of the
7 Section 362.4 provides in pertinent part: “When the juvenile court terminates its
jurisdiction over a minor who has been adjudged a dependent child of the juvenile court
prior to the minor’s attainment of the age of 18 years, and proceedings for dissolution of
marriage, for nullity of marriage, or for legal separation, of the minor’s parents . . . are
pending in the superior court of any county, or an order has been entered with regard to
the custody of that minor, the juvenile court on its own motion, may issue . . . an order
determining the custody of, or visitation with, the child.”
30
juvenile court. (In re Stephanie M., supra, at p. 318; In re K.D. (2004) 124 Cal.App.4th
1013, 1018.)
In making the no-contact order, the juvenile court balanced the evidence showing
that Father’s and Jade’s interactions had many positive elements with the evidence
showing that Jade’s physical and emotional safety remained at risk because of Father’s
behavior, ultimately determining that only a no-contact order would keep Jade safe. With
respect to Jade’s physical safety, the juvenile court reiterated its concerns about Father’s
lying about Jade’s medical symptoms and allowing her to undergo medical tests solely on
the basis of those misrepresentations; Father’s continuing to demand medical
professionals examine every bruise or mark on Jade; and his talking a monitor into
allowing him to take Jade to a doctor during a monitored visit. The juvenile court also
received evidence of a concern expressed by Mother, who noted that Father routinely
travelled internationally and she discovered him once trying to steal Jade’s passport. In
addition, the Department outlined the history of restraining orders against Father
involving others, as well as his recent harassment of those involved in the dependency
case. The juvenile court summarized: “I frankly never have seen a parent so incapable
of controlling [himself] in a controlled setting. Whether it’s in court, whether it’s at the
[Department] office, he simply cannot just visit with his daughter. He needs to, as the
[Human Services Aid worker] pointed out, harass her, harass the Mother, use her to
harass the Mother. It’s unbelievable, frankly.”
In considering Jade’s emotional safety, the juvenile court cited In re Brittany C.
(2011) 191 Cal.App.4th 1343, 1357, which held “that a court has the power to suspend
visits when continuing them would be harmful to a child’s emotional well-being.”
Expressing its most recent concern about Jade’s emotional well-being, the juvenile court
stated: Father “is completely unable to take no for an answer in any respect in this case.
And that even causes the court more concern, when the [Human Services Aid worker]
said today that when Jade says no to the Father he gets very frustrated with her. It causes
me a whole lot of concern since he is completely incapable of taking no from anybody
else here.”
31
Father contends the juvenile court’s reliance on In re Brittany C., supra, 191
Cal.App.4th 1343 was misplaced, as that case involved older children who had a history
of volatile encounters with their parents. (Id. at pp. 1357–1358.) But notably, the In re
Brittany C. court relied on In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008, a
dependency case involving a seven and one-half month old infant, where the court
observed “[t]he court may deny a parent visitation only if visitation would be harmful to
the child’s emotional well-being.” The balance of the cases cited by Father involve
visitation orders made in connection with a disposition order pursuant to section 362.1,
subdivision (a)—not an exit order under section 362.4—and for that reason a specific
showing of detriment was required. (See In re C.C. (2009) 172 Cal.App.4th 1481, 1489–
1490 [though juvenile court ultimately terminated jurisdiction, challenged visitation order
was made at disposition and therefore required a showing that visitation would be
detrimental]; In re Nicholas B., supra, 88 Cal.App.4th at p. 1138 [discussing visitation
order made in connection with disposition order, but finding challenge moot]; In re
Luke L. (1996) 44 Cal.App.4th 670, 679–680 [reviewing placement order to the extent it
negatively affected visitation under § 362.1]; In re Daniel C. H. (1990) 220 Cal.App.3d
814, 838–839 [affirming visitation order made in connection with disposition order].)
Here, the juvenile court’s exit order was made pursuant to section 362.4, and
under that statute the juvenile court considers the question of visitation by determining
the child’s best interests under a totality of the circumstances. (In re John W. (1996) 41
Cal.App.4th 961, 972–973; In re Jennifer R., supra, 14 Cal.App.4th at p. 712; In re
Roger S., supra, 4 Cal.App.4th at pp. 30–31.) Nothing in section 362.4 requires a finding
of detriment to deny visitation or contact in an exit order. The Legislature knows how to
require the juvenile court to make an express finding of detriment (e.g., §§ 361 .5,
subd. (f); 362.1, subd. (a)(2); 366.21, subd. (h); 366.22, subd. (a)) and it did not do so in
connection with section 362.4. For this reason, appellant’s argument as to why each
isolated fact relied on by the juvenile court was not detrimental to Jade affords no basis
for us to disturb the juvenile court’s exercise of discretion.
32
We likewise reject appellant’s argument that less restrictive alternatives would
have been in Jade’s best interest. The juvenile court explained that “[n]o matter what
safeguards this court has tried to put into effect to allow contact between the Father and
Jade, the Father won’t abide by it.” Describing a recent example of the Father’s
thwarting the juvenile court’s order, the court added: “I specifically made an order that
[the Department] not provide to the Father the name of the child’s new pediatrician so
that that pediatrician would not be harassed and would continue to provide treatment for
Jade. And lo and behold, on the witness list of Father for the contested disposition is that
new pediatrician’s name.” In view of evidence showing Father’s unwillingness to
comply with court orders, the juvenile court was within its discretion to determine that a
less restrictive order would be ineffective.
Finally, there is no merit to Father’s argument that the no-contact order infringed
on his constitutional rights. While the authorities cited by Father accurately provide that
a parent has fundamental right to retain the care, custody, management, and
companionship of his own child, free of intervention by the government, none establishes
that the parent-child relationship may not be disrupted where there are strong reasons for
doing so to protect the best interests of the child. (See In re S.H. (2003) 111 Cal.App.4th
310, 317 [“the parents’ interest in the care, custody and companionship of their children
is not to be maintained at the child’s expense”]; In re Julie M. (1999) 69 Cal.App.4th 41,
50 [“a parent’s liberty interest in the care, custody and companionship of children cannot
be maintained at the expense of their well-being”].)
Here, the juvenile court clearly articulated its concerns about Father’s effect on
Jade’s well-being. It commented: “I would note for the record that I know that a number
of therapists came and testified that [Father] has no psychological diagnosis, that he is not
a risk to the child. I would note that none of those witnesses or therapists have spent a
fraction of the hours that this court has spent listening to the witnesses, observing
[Father], et cetera. And while this court does not have any kind of a psychological
degree, and while I do not use this term in a therapeutic way, the only word that I can
wrap my brain around that describes this father is sociopathic.” Viewing the totality of
33
the circumstances—including Father’s continued insistence that Jade constantly needed
additional medical treatment and his failure to acknowledge that his behavior posed any
risk to her—and considering Jade’s best interests, the juvenile court did not abuse its
discretion in issuing a no-contact order.8
DISPOSITION
The juvenile court’s orders declining to dismiss the section 300 petitions, and its
jurisdiction order and subsequent order terminating jurisdiction with a family law order
that includes a no-contact order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J. *
FERNS
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
8 Should circumstances change, Father may seek to modify the no-contact order
pursuant to section 362.4, which provides in part that “[a]ny order issued pursuant to this
section shall continue until modified or terminated by a subsequent order of the superior
court.”
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
34
In re Jade B. CA2/2
Combined Opinion