Filed 11/4/21 In re A.S. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.S., a Person Coming B310778
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP03335A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
I.S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Sabina A. Helton, Judge. Affirmed.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephanie Jo Reagan, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
A father appeals from the juvenile court’s jurisdictional and
disposition orders regarding his son A.S. We affirm.
Undesignated statutory references are to the Welfare and
Institutions Code.
I
We recount the factual and procedural background.
The father and mother separated in 2017 and divorced in
November 2019 when A.S. was eight. The divorce was
contentious. The mother claims the father physically and
emotionally abused her during the marriage. The two share
custody of A.S. A.S. spends every other weekend, Monday
afternoons, and Tuesday afternoons to Wednesday mornings with
his father. He spends the rest of the time with his mother, with
holidays divided between the parents pursuant to a family law
order.
A.S. is a high-functioning autistic child. He received
regional center services in the past. He attends therapy, which
he began after the parents’ separation. A.S. is bright and
articulate for his age and diagnosis. He engages in behaviors
typical for children with autism, including “stimming” behaviors.
Stimming behaviors are repetitive actions, such as pacing, used
to self-soothe and cope with feelings of anxiety, fear, and
nervousness. A.S. has a strong need for structure. Uncertainty
causes him anxiety.
According to his mother, A.S. returned from a weekend
visit with his father in June 2020 and told her his father had
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choked him and held him on the ground. A.S. also said his father
and paternal grandmother had wanted A.S. to try on pants with
suspenders. A.S. did not want to and began a tantrum, saying he
hated his father. According to A.S., his father then “held me
tight and then choked my neck on the ground.” A.S. reported
that he defecated on himself because his father’s conduct scared
him. His mother found three bruises on A.S.’s side and chest.
The mother set up a virtual therapy session for A.S. with
his therapist that afternoon. A.S. repeated the same account to
his therapist. The therapist recommended the mother report the
situation to the police, which the mother did. The Department of
Children and Family Services contacted the mother, and a social
worker visited her and A.S. the next day.
During a private interview with the social worker, A.S.
repeated his account of the incident and demonstrated how his
father held him with his hands. The social worker observed two
thumb-sized bruises on A.S.’s side that A.S. said his father
caused when he squeezed and choked A.S. over the weekend.
A.S. told the social worker his father threw an apple at his
mother before and had twisted A.S.’s arm. A.S. refused to go to
his father’s for his scheduled visit that day.
The social worker spoke with the father about the incident.
The father said, when A.S. began to throw a fit about the
suspenders, the father “gave [A.S.] a tight hug and told him I love
him.” A.S. told his father, “No, stop.” The father denied holding
A.S. down or putting his hands on A.S.’s neck. The paternal
grandmother, who was present, also said the father only “held”
A.S. and did not choke him. The social worker “was surprised by
the lack of knowledge the father has about Autistic children in
general.”
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The social worker visited A.S. before A.S.’s next scheduled
visit with the father. A.S. paced during their entire 30-minute
discussion. A.S. said he did not want to go to his father’s and
that he was “unsafe because my dad choked me the last time I
saw him.” After observing A.S.’s level of anxiety, the social
worker told the father A.S. did not feel safe to visit that day.
A.S.’s therapist told the social worker A.S. had clearly and
consistently described to her how his father choked him. A.S.’s
stimming behaviors had also increased over the past few weeks.
The therapist did not believe A.S. was physically or emotionally
safe in the father’s home.
The Department had received previous referrals involving
the family. These referrals involved domestic abuse between the
parents in front of A.S., an altercation between the father and
maternal grandparents during a pickup from a visit, and an
incident in which the father pushed a dog crate into the mother.
All were closed as inconclusive or unfounded.
The father agreed to a detention and was willing to
participate in services. After a hearing, the juvenile court denied
the Department’s request to detain A.S. from the father, finding
A.S.’s account “difficult to believe” because of A.S.’s age and
diagnosis. The Department filed a petition for an extraordinary
writ. This court stayed the juvenile court’s order and granted the
writ. We ordered the juvenile court to vacate the order denying
the request and reconsider the request consistent with the
alternative writ or show cause why it had not done so. The
Department filed a peremptory challenge and the court
reassigned the case to a different judicial officer. The juvenile
court issued an order detaining A.S. from his father.
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Several weeks after the choking incident and before the
adjudication and disposition hearing, the social worker spoke
with A.S., who again confirmed his earlier account. He repeated
he was afraid of his father, did not want to visit him, and had
nightmares about his father.
About five weeks after the incident, A.S.’s doctor prescribed
medication to help treat his obsessive-compulsive disorder, his
anxiety, and his loss of appetite. A.S.’s therapist wrote a letter
detailing A.S.’s increased anxiety since resuming visits with his
father. This letter described the effects on A.S.’s physical and
mental well-being: more need for routine, trouble sleeping,
tantrums, increased stimming, loss of appetite, and consequently
heightened levels of medication.
The father had sporadic monitored visits after the
Department detained A.S. Before one visit, the social worker
overheard the mother telling A.S., “I know you don’t want to but
you have to until 730 on the dot.” A.S. was negative throughout
the visit and engaged with the father little. Overall, the social
worker reported the visits went very well and the father and A.S.
seemed closely bonded. The father did not begin counseling or
classes.
The juvenile court held the adjudication and disposition
hearing over multiple days. The father called a social worker
who worked with the family before. She had concluded in an
earlier investigation that the mother might be unintentionally
coaching A.S. The father testified about the choking incident and
his relationship with A.S. The father again stated he had tried to
calm A.S. down by hugging him and demonstrated his action for
the court. The court noted it looked as though the father had
given A.S. a sort of bear hug. The father said A.S. often said he
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was choking when hugged by his father or other relatives. The
father testified A.S. had had an accident before the incident, and
the accident is what led to A.S. needing to change pants. When
asked why he had previously told the social worker A.S.’s
accident had been 15 to 20 minutes after and unrelated to the
tantrum, the father said he must have been in shock and
misspoke. He stated the mother repeatedly made false claims
against him and interfered with his ability to see A.S.
The juvenile court sustained an allegation of failure to
protect against the father pursuant to section 300, subdivision
(b), amending the language in the petition to reflect that the
father used “inappropriate physical discipline,” rather than
engaged in physical abuse of A.S. The court noted it was unclear
exactly what occurred, but the court believed it amounted to
inappropriate physical discipline and represented “a disconnect
on father’s part about discipline and parenting a child with
[A.S.]’s unique issues.” The court noted “a lack of understanding
by father of [A.S.]’s exact diagnosis,” though the father’s love of
and pride in A.S. was very apparent. The court noted A.S. was
currently having “very serious reactions,” including increased
anxiety, trouble sleeping, nonstop pacing, and difficulty eating.
The court believed the father needed assistance safely to mend
his relationship with A.S. without causing further trauma.
Based on A.S.’s current mental and emotional state, the court
detained A.S. from the father, placed A.S. with the mother, and
ordered services for both parents.
The father appealed.
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II
The father argues the record does not contain substantial
evidence supporting either the juvenile court’s jurisdiction or
disposition findings. We affirm.
A
The father argues substantial evidence did not support the
juvenile court’s assertion of jurisdiction over A.S. This argument
is incorrect.
We review the juvenile court’s exercise of jurisdiction for
substantial evidence.
The father’s main argument is he did not cause A.S. serious
physical harm with his “bear hug.” The record belies the father’s
attempts to minimize the effect of his conduct on A.S. A.S.
repeatedly and consistently reported that his father choked him.
Two and three days later, A.S. bore thumb-size bruises. The
father’s actions also caused A.S. to defecate on himself from
fright. Although the father testified this was not true, his
accounts of the accident were contradictory. A.S. repeatedly
stated he did not feel safe around his father and was worried he
would be choked again. The juvenile court noted after the event
A.S. experienced “very serious reactions,” including trouble
sleeping, difficulty eating, and increased stimming behaviors. He
had begun taking medication and seeing a psychiatrist. The
father’s actions constitute serious physical harm to A.S.,
particularly taking into account A.S.’s diagnosis.
The father cites cases finding parents’ use of corporal
punishment did not amount to child abuse. These cases do not
concern a child with autism. Each emphasizes the case-specific
nature of such an inquiry. Here, the court found the father’s
discipline of A.S. was inappropriate under the circumstances.
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Gonzales v. Santa Clara County Department of Social Services
(2014) 223 Cal.App.4th 72, 92–93 notes that discipline leaving a
bruise does not automatically cross the line to unreasonable
punishment, but certainly the presence of lasting bruises may
support a finding that a parent crossed the line between
permissible discipline and reportable abuse. This holding
supports the juvenile court’s ruling.
The father emphasizes the juvenile court’s recognition that
he clearly loves and is proud of A.S. These facts do not contradict
a finding that he engaged in inappropriate conduct that caused
A.S. serious harm. The court also noted the father’s “lack of
understanding . . . of [A.S.]’s exact diagnosis.” This is consistent
with the social worker’s observation that the father seemed to
lack general knowledge about children with autism. Loving your
child does not spontaneously give insight into the specialized care
children with autism require.
The father argues that, even if he did cause A.S. serious
harm, there was not substantial evidence A.S. remained at
substantial risk of harm. The father’s lack of awareness of how
to deal with children with autism did provide this evidence. The
father had reportedly sought some training about how to deal
with A.S., but still engaged in inappropriate discipline. The
father admitted he knew A.S. disliked and reacted poorly to being
hugged but persisted in the conduct. The father did not have the
knowledge or skills to react appropriately. Thus, until the father
received additional training, there was a risk another such
situation might arise and the father would be ill-equipped to
handle it. The court noted the “father is going to need assistance
in safely mending this relationship with [A.S.] without causing
further trauma to him.”
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The father’s actions toward A.S. caused A.S. serious
physical harm and the father’s lack of progress in learning new
skills meant A.S. would continue to be at risk with him.
Substantial evidence supported the juvenile court’s exercise of
jurisdiction.
B
The father argues the evidence in the record did not meet
the higher clear and convincing standard applied at the
dispositional phase. This argument is erroneous.
We review the juvenile court’s dispositional order for
substantial evidence. Our inquiry is whether the record contains
substantial evidence from which a reasonable fact finder could
conclude it is highly probable a fact is true. (Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1011–1012.)
A child can be removed from a parent only when failure to
do so will result in substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the child.
(§ 361, subd. (c)(1).) The father focuses on the higher burden
posed by the clear and convincing standard at the dispositional
stage, but largely ignores the broader focus on the child’s
emotional well-being.
The juvenile court found A.S. was experiencing a serious
reaction to the event with the father. This was taking a toll on
A.S.’s emotional and mental well-being, in addition to the
physical effects we already have discussed. In considering the
disposition, the juvenile court expressly relied on A.S.’s emotional
and mental state. This included his nightmares relating to his
father, increased stimming behaviors, and the recent need to see
a psychiatrist and begin medication. A.S. had also expressed fear
of his father and said he did not feel safe. This evidence supports
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a finding that it is highly probable A.S.’s emotional well-being
would be in substantial danger if the court did not remove him
from his father.
The father focuses on the notes from a few monitored visits
with A.S. stating the visits went well and the two seemed bonded.
These positive but limited interactions do not negate A.S.’s
substantial negative experiences. Nor do they prove the visits
would remain positive without a monitor or for a longer duration.
The father also argues there were reasonable means short
of removing A.S. to protect him. He suggests several
alternatives: complying with his case plan; making A.S.
available for services; unannounced home visits; supervision by
the Department and the court; continued cooperation with social
workers; in home services; or wraparound services. As the
juvenile court noted, however, these measures all would take
time, and A.S.’s adverse reaction was right then. The court found
the father needed assistance in repairing his relationship with
A.S. without causing further trauma. It was reasonable for the
court to find returning A.S. to the father, before he had a chance
to learn new skills and to demonstrate his mastery of them,
would put A.S. at risk. Substantial evidence supported the
court’s conclusion that clear and convincing evidence showed the
measures suggested by the father would not adequately protect
A.S.’s well-being given his current state.
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DISPOSITION
We affirm.
WILEY, J.
We concur:
GRIMES, Acting P. J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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