Filed 5/26/21 In re A.R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
In re A.R., a Person Coming Under B306563
the Juvenile Court Law.
__________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 20CCJP02783A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Lisa A. Brackelmanns, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen D. Watson, Deputy County
Counsel, for Plaintiff and Respondent.
A.C. (Father) appeals from a juvenile court dependency
jurisdiction finding concerning his son A.R. (Minor), as well as an
order removing Minor from Father’s and R.R.’s (Mother’s)
custody. The juvenile court found Minor was at substantial risk
of serious physical harm from Father’s history of mental and
emotional problems and Mother’s willingness to permit Father to
reside in the home and have unlimited access to Minor. Mother
has not appealed from the juvenile court’s jurisdiction finding
and disposition order, but Father asks us to decide whether
substantial evidence supports both. He also argues the juvenile
court erred in considering assertedly privileged statements made
by hospital personnel during Father’s involuntary psychiatric
hospitalization, but, as we will explain, that is an issue we need
not resolve.
I. BACKGROUND
A. The Referral Regarding Father’s Mental Health
On the evening of May 8, 2020, the Los Angeles County
Department of Children and Family Services (the Department)
responded to a referral alleging general neglect of Minor, who
was seven years old at the time. According to the reporting
party, a man (later identified as Father) had been running in and
out of the street, throwing water bottles at cars, and
masturbating in public.
A Department social worker arrived on the scene and
observed a man standing in the street waving and yelling at cars.
The social worker requested assistance from law enforcement
before approaching Mother’s duplex-style apartment. A
psychiatric social worker from the Department of Mental Health
was also present on the scene when the police arrived. She found
2
Father’s behavior to be “‘bizarre, agitated, and paranoid’” and she
observed Father “yelling at the officers with hopes of intimidating
them.” When she tried to engage with Father, he was “very
delusional and . . . not making sense in his statements.”
When the Department social worker, accompanied by police
officers, knocked on the door of the apartment where Minor and
his parents were living, Mother and Father refused to let them
in. When the social worker explained (through the door) that she
wanted to speak with Minor, Father brought Minor to a window
and permitted the social worker to speak with him only through
the window. Minor told the social worker he felt safe, was not
afraid of Mother or Father, and denied any verbal, physical, or
sexual abuse. As far as the social worker could tell from the
conversation through the window, Minor appeared calm and in
good health and good spirits.
Father, however, became increasingly hostile during the
social worker’s conversation with Minor and began directing
“racial slurs” toward the social worker and the accompanying
officers. The social worker and the police officers, on the officers’
recommendation, left the immediate area in an effort to avoid
any further escalation in light of Father’s mounting anger (he
had come outside the home and was yelling at them from the
street when they were no longer near the apartment door).
The following day, May 9, 2020, another Department social
worker and an accompanying police officer returned to the home
and attempted to interview Mother and Father. They again
refused to open the door and Father became “very vulgar” toward
the social worker and the accompanying officer. Father also
issued a not-so-veiled threat, telling the social worker and the
police officer that if they tried “‘to come in here, I have something
3
waiting for you guys.’” The officer advised the social worker to
move away from the apartment’s front door, and, after the officer
consulted with a police department supervisor, both left the area.
The assigned social worker continued to investigate Minor’s
welfare by speaking to two neighboring tenants (otherwise
unidentified by the Department’s reporting) in Mother’s
apartment building. Both neighbors stated they had heard
yelling and profanity from the home of the family, and one of the
neighbors reported hearing Mother hitting Minor on two
occasions. Neither neighbor, however, reported seeing any
bruises or unusual marks on Minor. The social worker also
reported receiving “criminal docket” information for Father that
revealed he underwent “mental competency proceedings in
criminal [c]ourt in 2019[ ] in relation to a conviction for
battery/assault.”1
B. Father’s Involuntary Hospitalization and Further
Department Investigation
Four days after the last visit by the police and the social
worker to Mother and Father’s home, i.e., on May 13, 2020, the
police had Father involuntarily hospitalized at Huntington
Hospital pursuant to section 5150 of the Welfare and Institutions
Code. That statute permits taking a person into custody for up to
72 hours for “assessment, evaluation, and crisis intervention”
when there is probable cause the “person, as a result of a mental
1
The Department was ultimately unable to obtain
documents from the criminal case detailing the competency
proceedings.
4
health disorder, is a danger to others, or to himself or herself, or
gravely disabled.” (Welf. & Inst. Code,2 § 5150, subd. (a).)
While Father was being held involuntarily, a Department
social worker interviewed Mother. She acknowledged Father was
yelling and “behaving awkwardly” when police and a social
worker first visited the family home on May 8th, but Mother
explained she did not open the door for law enforcement because
“she did not want to hear [F]ather’s mouth.” As Mother put it,
“‘That was his issue and I did not want to be in it.’” Mother also
expressed more general frustrations with the police department
because she said she previously contacted the police when
Father’s behavior was “manic” and yet the police refused to help;
according to Mother, her last call to the police was about three
weeks earlier when Father was screaming at her.3 Mother
attributed Father’s recent behavior to increased stress, but when
asked if Father had mental health problems or took psychotropic
medication, Mother denied that he did.4 She also denied Father
2
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
3
According to police department records reviewed by the
Department, Mother called law enforcement on April 4, 2020, and
reported Father was screaming at her and she wanted him to
leave.
4
When asked about her plans when Father was discharged
from the hospital, however, Mother said she would not allow him
to return to the home if he does not take “his medication.”
5
ever physically assaulted her and she claimed she was not fearful
of Father (though she did concede he “verbally assaults” her).5
The social worker also interviewed Minor (Mother was
present during the interview). When Minor was asked if he knew
why the social worker wanted to talk to him, he said “‘[Father]
was arrested, in my opinion he was arrested for no reason.’”
Asked specifically about what occurred on May 8th (the day the
Department first visited the family home), Minor said Father was
upset and yelling but Minor did not know why. Minor also told
the interviewing social worker that Father yells at Mother often,
but Minor again said he did not know why. Minor denied being
fearful of either parent, however, and he said he never saw
domestic violence between the two. He also denied being
physically disciplined by his parents and denied “all forms of
abuse and neglect.”
A Department social worker communicated with personnel
at the hospital where Father was being held for evaluation (these
communications would be the subject of Father’s later claim of
privilege). The day after Father’s admission, an employee of the
hospital’s “psych unit” said Father had been behaving erratically
and would yell when spoken to, but there was no diagnosis yet
because he had not been seen by a psychiatrist. The following
day, the hospital social worker overseeing Father’s care informed
the Department that Father had been assessed by a “Dr.
Kurkjian” and given a primary diagnosis of psychosis with a
secondary diagnosis of bipolar disorder with psychotic features.
The social worker said hospital personnel had offered medication
5
In the social worker’s judgment, Mother was “very
protective” of Father and “minimize[d]” his behavior.
6
to Father, but he refused to take it. The hospital social worker
further advised that Father’s 72-hour involuntary hold could be
extended if medical personnel found it necessary based on his
progress or lack thereof.6
Father was held for longer than the 72 hours permitted by
section 5150: he was discharged from the hospital on May 19,
2020, i.e., six days after being admitted. Later that same day,
the Department obtained a warrant to remove Minor from his
parents’ custody. When the police and Department social
workers arrived at the family home to execute the removal
warrant, the parents initially refused access to Minor, but they
eventually relented—though Father cursed and yelled profanities
at the social workers and police officers.
Once removed from his parents’ custody, Minor spoke with
a social worker and said he had felt safe with his parents. He
revealed, however, that Mother and Father often argued and
Mother would “tape[ ] the holes in the apartment walls” because
she believed there were cameras and microphones in the
apartment. In some contrast to his statement during a prior
interview in Mother’s presence, Minor revealed his parents did
6
After the 72-hour period authorized by section 5150, a
person may be certified for up to 14 additional days of intensive
treatment if the professional staff of a hospital or facility has
analyzed the person’s condition and has found the person is, as a
result of a mental health disorder, a danger to himself or others,
or gravely disabled, and the person is unwilling or unable to
accept treatment on a voluntary basis. (§ 5250; see generally In
re Qawi (2004) 32 Cal.4th 1, 16 [describing a series of
increasingly lengthy periods of detention following an initial 72-
hour commitment which are “‘implemented incrementally’”].)
7
physically discipline him on occasion but he said “they don’t do it
a lot.” Minor also stated he would view his time in foster care as
a “vacation” for his parents because he frequently made them
mad. Minor did not elaborate.
C. The Petition and Post-Detention Investigation
In May 2020, the Department filed a two-count dependency
petition alleging Minor was at substantial risk of suffering
serious physical harm as a result of his parents’ failure or
inability to adequately supervise or protect him. Count b-1 of the
petition alleged Father had a history of mental and emotional
problems, including a diagnosis of Psychosis and Bi-Polar
Disorder with psychotic features, that placed Minor at risk of
harm and Mother “knew of [Father’s] mental and emotional
problems and failed to protect [Minor] in that [Mother] allowed
[Father] to reside in [Minor’s] home and to have unlimited access
to [Minor].” Count b-2 of the petition alleged Minor was at risk of
harm from Father’s abuse of marijuana and Mother’s tolerance of
that abuse in Minor’s presence.
At an initial detention hearing, Father denied the petition’s
allegations and objected to various statements in the
Department’s detention report, including the statements by
hospital personnel discussing Father’s mental health. The
juvenile court ordered Minor detained from his parents and
preserved Father’s evidentiary objections for a jurisdiction
hearing to be held later.
In advance of that hearing, the Department re-interviewed
Mother and Minor. Mother described Father as being a “good
father to [Minor]” and denied being told by any doctor that
Father had been diagnosed with any mental condition; she said
8
she only learned of a diagnosis of mental illness from the
Department. In connection with the public masturbation that
was described by the original referring party, Mother said Father
had a hernia and needs to “adjust himself quite frankly a lot.”
Mother also told the Department that Father was no longer
living in her home and was staying instead at nearby motels.
In his follow-up interview, Minor told the Department’s
investigator that Father sometimes talks to himself. Minor also
described an instance when Father got “super duper mad” at a
delivery driver and threw an object at the driver (Minor did not
see what the object was). In addition, Minor said he “can’t
explain too much” and believed the police came to his home
because he was playing cops and robbers with his stuffed
animals.
The Department attempted repeatedly to interview Father
but ultimately the dependency investigator was able to
communicate with him only through text messages. In several of
his text messages, Father accused the Department of
“kidnapping” Minor, having a “conflict of interest,” engaging in
“civil harassment,” and being an “indian god.” One of the
messages complained of the Department’s “defective incomplete
paperwork, which has no legal seals” and informed the
Department that the paperwork had been “forwarded to federal
agency.”
With its jurisdiction report to the juvenile court, the
Department submitted a copy of the discharge papers from
Father’s involuntary hospitalization. While portions of the
discharge paperwork are legible, including the results of
laboratory tests and the directions regarding a medication that
Father was taking (naproxen) before admission, other portions,
9
including the “discharge home medications,” are almost entirely
illegible. The section devoted to follow-up plans with Father’s
primary care physician and other health care providers appear
blank. The discharge papers, to the extent they are legible, do
not refer to Father’s diagnosis or discuss Father’s
communications with his psychotherapist or his psychotherapist’s
advice.
Prior to the adjudication hearing, Mother and Father filed
written objections to various statements in the Department’s
reports. Mother’s objection was general in nature.7 Father
principally argued the medical records and statements made by
or attributed to medical professionals charged with his care
during his section 5150 hold were protected by the
psychotherapist-patient privilege and should be excluded. In
opposition, the Department argued the psychotherapist-patient
privilege did not apply because Father was evaluated
involuntarily pursuant to section 5150, which meant he was not a
“patient” within the meaning of the privilege. The Department
also argued the court had the authority to permit disclosure of
Father’s medical records under section 5328 because they were
relevant to investigation and prevention of child abuse and
neglect.
D. Adjudication and Disposition
The juvenile court held a jurisdiction and disposition
hearing in July 2020. With regard to the parents’ evidentiary
7
During the later jurisdiction hearing, Mother’s attorney
clarified that her objection was to the hearsay statements of her
neighbors found in the Department’s detention report.
10
objections, the court ruled it would admit the statements of the
unnamed witnesses (the reporting party and Mother’s neighbors)
but accord them “little to no weight” due to the absence of any
corroborating evidence. The court also ruled that it would not
give “any weight” to statements in the Department reports about
Father’s criminal history, including the aforementioned mental
competency proceedings, because the Department did not provide
the court with certified copies of documents from the criminal
case. The juvenile court ruled the statements by hospital
personnel and the hospital discharge paperwork would be
admitted in evidence because section 5328 permitted the
disclosure of such information, including “privileged
communication[s],” and Father’s right to confidentiality was
outweighed by the need to investigate the risk to Minor’s welfare.
The court otherwise admitted the Department’s reports in
evidence and also admitted exhibits offered by Mother, including
a certificate of outstanding engagement Minor received from his
school and a letter from his teacher. In her letter, the teacher
described Minor as a “wonderful student who is very inquisitive
and loves participating,” “gets along with all of the other
students,” and “make[s] even the shyest of kids feel comfortable.”
After hearing argument, the juvenile court dismissed the
petition’s b-2 substance abuse count and sustained the b-1
mental and emotional problems count after amendments by
interlineation. With its amendments, the court added language
to indicate Father was hospitalized pursuant to a section 5150
hold; struck language stating Father fondled his genitals in
public, threw water bottles at cars, and made delusional
statements; and limited language concerning Father’s inability to
care for Minor so it referred to the existence of that inability only
11
“at times.”8 Explaining its decision to sustain the b-1 count as
amended, the juvenile court stated: “[A]fter reviewing all the
evidence and hearing the arguments of counsel, I do believe that
the mental health condition and behaviors exhibited by [Father],
and the impact it had on [Minor], does pose a physical risk to the
child.” As for disposition, the juvenile court concurred with the
position advocated by the Department and Minor’s attorney and
ordered Minor removed from his parents’ custody and care.
II. DISCUSSION
Mother does not appeal from the juvenile court’s orders,
which means our resolution of this appeal will not disturb the
juvenile court’s jurisdiction over Minor. (In re I.A. (2011) 201
Cal.App.4th 1484, 1492; In re Alysha S. (1996) 51 Cal.App.4th
393, 397.) Nevertheless, in light of the interrelated factual basis
for the finding of jurisdiction against both Mother and Father, we
will discuss the reasons why we believe the jurisdiction finding is
sound even assuming the juvenile court should have granted
8
As amended, count b-1 reads: “[Father] has a history of
mental and emotional problems, including a diagnosis of
Psychosis and Bi-Polar Disorder with psychotic features which
renders [Father] at times unable to provide regular care of the
child. On 05/13/2020, [Father] was hospitalized on a 5150 hold
for the evaluation and treatment of [Father’s] psychiatric
condition. [Mother] knew of [Father’s] mental and emotional
problems and was unable to protect the child in that Mother
allowed [Father] to reside in the child’s home and to have
unlimited access to the child. Such mental and emotional
condition on the part of [Father] and [Mother’s] failure to protect
the child endanger the child’s physical health and safety, and
places the child at risk of serious physical harm . . . .”
12
Father’s request to exclude the statements by hospital personnel
and his hospital discharge paperwork.
In short, what truly matters is how mental and emotional
problems manifest, not any specific psychiatric diagnosis. Here,
there is strong evidence Father was suffering from mental and
emotional problems that placed Minor at substantial risk of
suffering serious physical harm: the involuntary section 5150
psychiatric hold, plus the extension of that hold beyond three
days by hospital staff; the observations of Father’s erratic,
“delusional,” and threatening behavior by law enforcement and
the mental health social worker; and Mother and Minor’s
statements about Father’s aggressive and, at and least in one
instance, violent behavior at home. The strength of this evidence
dispels any reasonable probability the juvenile court would have
come to a different conclusion absent consideration of the
assertedly privileged information and provides ample grounds for
the assumption of jurisdiction. This same evidence, combined
with Mother’s inability or unwillingness to take corrective
measures, also establishes the requisite basis for the juvenile
court’s decision to remove Minor from his parents’ custody.
A. Reversal of the Jurisdiction Finding Is Unwarranted
Section 300, subdivision (b)(1) authorizes a juvenile court to
assume dependency jurisdiction over a child when “[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 his or her parent or guardian to adequately supervise
or protect the child . . . .” Father argues the juvenile court’s
jurisdiction finding is infirm because the court erred in admitting
the hospital personnel communications he contends are
13
privileged—and even with those communications, there was
insufficient evidence to satisfy section 300, subdivision (b)(1).
Assuming just for argument’s sake that Father is right about the
evidentiary error, the ruling was harmless in light of the relative
strength of the other un-objected-to evidence (see generally In re
Celine R. (2003) 31 Cal.4th 45, 59-60; In re Jordan R. (2012) 205
Cal.App.4th 111, 134-135)—and that, of course, means there is
substantial evidence supporting the jurisdiction ruling (see
generally In re R.T. (2017) 3 Cal.5th 622, 633).9
As Father himself recognizes in his opening brief, the mere
fact a parent is diagnosed with a mental illness does not provide
sufficient grounds to presume the parent’s child is at risk of harm
attributable to that illness. (See, e.g., In re A.L. (2017) 18
Cal.App.5th 1044, 1050 [“the law is settled that harm may not be
presumed from the mere fact of a parent’s mental illness”].) That
means, however, that the hospital social worker’s disclosure of
Father’s diagnosis to the Department is not particularly
probative of whether Minor is a child described by section 300
and the disclosure could not have played a prominent role in the
juvenile court’s assumption of jurisdiction. The true question is
instead, as Father himself again puts it, “whether the parent’s
mental illness and resulting behavior adversely affects the
[parent’s] child or jeopardizes the child’s safety. (Kimberly R. v.
Superior Court (2002) 96 Cal.App.4th 1067, 1079.)” There is good
evidence, apart from the purportedly privileged communications
from hospital personnel, that this is indeed the case.
9
For analytical purposes, we also do not rely on evidence
about which the trial court stated it was giving little weight or no
weight.
14
Father did not object to the juvenile court’s consideration of
the fact of his involuntary hold at Huntington Hospital, nor could
he; that fact is not within the scope of the psychotherapist-
patient privilege. The juvenile court amended the dependency
petition to make explicit reference to that involuntary
hospitalization and understandably so—it speaks volumes under
the circumstances. As we have already described, Father could
be held at the hospital for 72 hours under section 5150 only if
there were probable cause to believe he was a danger to himself
or others, or gravely disabled. Further, to extend such an
involuntary hold beyond 72 hours under section 5250, the
professional staff at the hospital must have confirmed—after
evaluation—that Father, as a result of a mental health disorder,
was a danger to himself or others, or gravely disabled. Father’s
involuntary admission to the hospital is thus evidence that he
was suffering from a non-trivial mental illness at the time, and
possibly an illness that posed a danger to himself or others.
Added to this evidence were the observations of those who
saw Father engaging in bizzare, delusional, and threatening
behavior before his involuntary hospitalization. The psychiatric
social worker from the Department of Mental Health
characterized Father’s behavior as bizarre and paranoid, and she
opined Father was yelling at police officers in a seeming attempt
to intimidate them. In addition, when the psychiatric social
worker attempted to engage with Father, he was “very delusional
and . . . not making sense in his statements.” The psychiatric
social worker’s assessment was consistent with the observations
a police officer on the scene who similarly characterized Father’s
behavior as erratic and with the Department’s social worker who
saw Father standing in the street yelling at cars. Moreover,
15
when the Department’s social worker and an accompanying
police officer later knocked on Father’s door to check on Minor’s
welfare, Father refused to open the door and said he had
“something waiting for” the officer and the social worker if they
tried to enter. This threat was especially revealing for purposes
of deciding whether jurisdiction over Minor was warranted:
Minor (or another child) was present in the apartment at the
time, and Father’s threat evidenced a willingness (bordering on
eagerness) to engage in a violent confrontation (perhaps with a
weapon) in the presence of a child.
Added to all that were the statements made by Mother and
Minor that suggested Father’s aggression and instability were
common in the family home and directed at least at Mother.
Mother acknowledged Father’s “manic” behavior toward her had
been concerning enough that she called the police in the recent
past, and Minor confirmed Father would yell at Mother often.
Mother attributed Father’s “awkward[ ]” behavior to increased
stress, and though she denied at one point that he took
psychotropic medication, she at another point said she would not
allow him back in the home unless he was taking his medication.
Minor also revealed, without being willing to elaborate, that his
parents physically disciplined him on occasion and stated he
would view his time in foster care as a “vacation” for his parents
because he frequently made them mad. Minor acknowledged
Father would talk to himself sometimes, and more significantly,
Minor related the incident when Father became so angry with a
delivery driver that Father threw something at the driver.
With all of this evidence of mental and emotional problems
that manifested in bizarre actions, threats, screaming, calls to
the police, involuntary hospitalization, and at least in one
16
instance violent behavior, we see no reasonable probability the
court would not have found jurisdiction if it had excluded the
hospital’s diagnosis of Father and his discharge paperwork.
Rather, there is strong evidence (that well exceeds the deferential
substantial evidence threshold) that the court would have taken
jurisdiction rather than waiting for Father’s mental and
emotional condition to deteriorate to the point where Minor
would suffer serious physical harm. (In re I.J. (2013) 56 Cal.4th
766, 773 [a juvenile court “‘need not wait until a child is seriously
abused or injured to assume jurisdiction and take the steps
necessary to protect the child’”]; accord, Jonathan L. v. Superior
Court (2008) 165 Cal.App.4th 1074, 1104 [“‘The purpose of
dependency proceedings is to prevent risk, not ignore it’”].)
B. Substantial Evidence Supports the Removal Order
Under section 361, subdivision (c)(1), a dependent child
may not be removed from a parent unless the juvenile court finds
“[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.” (§ 361, subd. (c)(1).) “‘The parent
need not be dangerous and the minor need not have been actually
harmed before removal is appropriate. The focus of the statute is
on averting harm to the child.’ [Citation.] The court may
consider a parent’s past conduct as well as present
circumstances.” (In re N.M. (2011) 197 Cal.App.4th 159, 169-
170.) We review a removal order for substantial evidence. (In re
17
Christopher R. (2014) 225 Cal.App.4th 1210, 1216; see also
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
The juvenile court’s decision to refrain from placing Minor
with either parent is supported by substantial evidence. As just
detailed, Father has unresolved mental and emotional problems
that raise the requisite substantial danger. Mother’s conduct left
no reason to believe she could or would do anything to mitigate
this danger. When directly asked whether Father suffered from
any mental or emotional problems, Mother denied it and made
excuses for him. She also continued to have contact with Father
and allowed him to have unlimited access to Minor even after
prior calls to the police and witnessing his behavior with social
workers and police officers—remarking at one point that Father’s
confrontational, paranoid behavior was “‘his issue and [she] did
not want to be in it.’” In other words, there was every reason to
believe Mother would continue to have contact with Father and
little if any reason to believe that she would protect Minor’s
physical and emotional well-being without Department
intervention and court-ordered services.
18
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
19