Opinion
B192284
4-25-2007
In re ROBIN M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. PEGGY M., Defendant and Appellant; SCOTT M., Defendant and Respondent.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant. Joseph D. MacKenzie, under appointment for the Court of Appeal, for Defendant and Respondent. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
This case is one of the many unfortunate cases that arise out of a volatile divorce between two parents who cannot set aside their conflicts for the sake of their child. As a result, the Department of Children and Family Services (DCFS) was forced to intervene, and the juvenile court was put in the precarious position of having to decide where the child should be placed. After considering a host of evidence regarding the child and the parents emotional states, the juvenile court determined that the child should be placed with her father.
Peggy M. (mother) appeals from that order. She contends that: (1) substantial evidence does not support the juvenile courts order removing the child, Robin M. (Robin), from her custody; (2) the juvenile courts order placing Robin with Scott M. (father) was erroneous; and (3) the juvenile court erred in admitting into evidence tape recordings of statements made by mother.
At trial, DCFS recommended against placement of Robin with either parent, urging, instead, that the child remain placed with a relative. DCFS, however, did not file a notice of appeal. On January 24, 2007, DCFS advised that it would not be filing a brief in this matter.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background Leading to the Welfare and Institutions Code Section 300 Petition
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother and father married in December 2001. They are the parents of Robin (born February 2002). Within a short time after Robins birth, their marital problems ensued.
Specifically, on April 21, 2003, father was arrested for domestic violence. The police reports indicate that he choked and hit mother several times during an argument, resulting in bruises to her wrist and injury to her neck. Robin was present during the incident. Following this incident, father pled guilty to infliction of corporal injury upon a spouse and was ordered to complete a 52-week domestic violence program. Father did not immediately do so. Instead, on December 1, 2003, he was discharged from a domestic violence program for violation of his probation. Then, on September 7, 2004, he was again dismissed from the program. This time, however, his probation was revoked, and a bench warrant issued. In March 2005, father admitted to violating his probation terms, and he was ordered to attend 20 sessions of anger management with Jaynes-Bell.
Father apparently completed a 52-week domestic violence program with his therapist, Dr. Christine Jaynes-Bell (Jaynes-Bell).
Meanwhile, on February 17, 2004, mother filed a petition for dissolution of marriage. In those documents, she indicated that no children were involved.
By March 2005, mother had moved with Robin to Arizona. Then, on April 13, 2005, the family court awarded mother legal and physical custody of Robin. That order was eventually set aside, and full custody was later awarded to father.
On August 3, 2005, the family court granted fathers ex parte request to have Robin located and returned to Los Angeles. On October 4, 2005, an anonymous caller reported to the Los Angeles child hotline that mother had taken Robin to Arizona. That day, a sheriff was called to mothers home in Arizona, and Robin was returned to California and placed in a confidential foster setting to prevent another abduction and to preserve Robins testimony.
Section 300 Petition
On October 7, 2005, DCFS filed a petition on behalf of Robin, pursuant to section 300, subdivisions (a) and (b).
In the DCFS detention report, the social worker reported his interview with father. According to father, mother is not a "fit parent." She had been diagnosed with bipolar disorder and had used crystal methamphetamine in 2001.
The social worker spoke with mother as well. She denied abducting Robin, claiming that the district attorney in Torrance knew her whereabouts in Arizona. She disputed fathers claim that she had been diagnosed with bipolar disorder; she attributed her history of emotional difficulties to be the result of posttraumatic situational stress disorder. She also denied fathers claim that she had a substance abuse problem. She confirmed that there were two protective orders in place against father, one issued for three years in May 2003, and a second one that issued in March 2005 by the same family court.
Robin told the social worker that she loved both mother and father. She recalled seeing her parents hit one another; she denied ever being hit by either mother or father.
DCFS recommended a mental health evaluation, parenting classes, and anger management counseling for both parents.
At the detention hearing, mother and father denied the allegations of the petition. Robin was detained and placed in a foster home. The juvenile court ordered monitored visits for the parents in a therapeutic setting.
Robin is Placed with a Maternal Cousin
On October 28, 2005, Robin was removed from her foster home and placed with a maternal cousin, Anna G. (Anna).
Jurisdiction/Disposition
In the jurisdiction/disposition report prepared by DCFS for the November 4, 2005, hearing, the social worker referenced a report filed in the Los Angeles Sheriffs Department on September 21, 2004, outlining its investigation of annoying and threatening telephone calls taped by father from mother between October 2003 and August 2004.
DCFS also mentioned a restraining order request filed on November 9, 2001, by Robins maternal grandmother (grandmother) against mother. According to grandmother, mother had been "screaming, threatening, demanding, pushing, [and] shoving" over grandmothers intent to sell her home.
The social worker further cited to another restraining order request filed by mothers first husband; he alleged that mother had been verbally abusive and attempted to remove everything from their home.
The social worker also reviewed a letter prepared by fathers current therapist, Jaynes-Bell, dated May 4, 2005. She wrote that she had seen mother for counseling between December 2003 and March 2004. At that time, she diagnosed mother with bipolar condition with psychotic features. She felt that mother was severely mentally ill and believed that she was using drugs. Father, on the other hand, was a "kind, distraught, gentle man who loved his children very much." Jaynes-Bell opined that the domestic charges leveled against him had been "contrived for personal gain by a seriously mentally ill ex-wife."
The DCFS report noted that father had not completed his domestic violence program and had violated the restraining orders. Mother had failed to disclose Robins whereabouts so that father could visit with her, and left the state. Mother appeared to be emotionally unstable and inconsistent and unclear in her explanations of events and in her statements.
Robin appeared very depressed when she was first assessed by the social worker on October 6, 2005. A week later, however, when mother accompanied Robin for an assessment, Robins mood was noticeably happier once she saw her mother. Robin was very sad to say goodbye to her. The social worker recommended that Robin remain out of parental custody, that mother undergo a section 730 evaluation, and that the parents be offered services.
Adjudication
At the January 10, 2006, adjudication hearing, both parents were present. The parties reached an agreement to resolve the matter and submitted "on the social study and the amended language of the petition." The petition was sustained as amended; the remaining allegations were dismissed, and the matter was set for disposition. Dr. Ronald R. Fairbanks was appointed to evaluate both mother and father.
The sustained allegation of the petition, count b-1, provides: "The mother . . . and the father . . . have on-going conflicts which put their daughter . . . at risk of harm. Such on-going conflicts resulted in mutual restraining orders. The on-going conflicts also resulted in the mother . . . leaving the state of California with the child while there was an on-going contentious family law case pending. Such on-going conflicts create[] a detrimental home environment for the child . . . and places her at risk of emotional trauma and damage."
Results of Section 730 Evaluations
In his evaluation with Dr. Fairbanks, father denied any abuse of drugs or alcohol, stating that he drank rarely. He also denied any anger issues or mood swings. With respect to mothers allegation of spousal abuse, he asserted that they were false; he only pled guilty because he was afraid of incarceration. He informed Dr. Fairbanks that he possessed tapes that recorded hundreds of harassing telephone calls made by mother to him. Finally, he shared that he had a close relationship with Jaynes-Bell.
Fathers test results indicated a high level of compulsiveness and an elevated score for paranoia. He lacked the capacity for self-criticism or insight into his behavior, and revealed a heavy narcissistic trait. Dr. Fairbanks concluded that he needed therapy, and he was pleased that father already was participating in therapy.
Mother spoke with Dr. Fairbanks as well. She denied that she had been keeping father from seeing Robin. In fact, she wanted their relationship to be more amicable.
When asked why she checked the "no child" box in the divorce papers, she explained that father had denied paternity of Robin.
Dr. Fairbanks could not rule out mothers prior diagnosis of bipolar disorder or a borderline personality disorder; she also appeared hyper. She showed signs of an above average level of physical aggression, and moderate levels of paranoia, social withdrawal, and depression. She also was somewhat histrionic and could be theatrical and compulsive. She too needed therapy.
Dr. Fairbanks was struck by the fact that mothers and fathers profiles were so similar, particularly in terms of projecting blame on others and feeling controlled, although he believed that mother had slightly more ability for insight into herself, yet she was more defensive than father. He concluded that mother and father could not "get along with each other, in part, because they have these same characteristics that cause them significant problems."
After interviewing mother and father, Dr. Fairbanks met with Robin. He observed no emotional factors. She appeared to have adjusted "extremely well" with Anna; she was exceedingly bright and capable, social, loving, caring, trusting, and emotionally on target. Robin was described as delightful, confident, and enchanting. Robins relationship with both mother and father was positive.
Dr. Fairbanks opined that both parents love Robin and that this love was reciprocated; she needed time with both parents.
February and March Disposition Reports
On February 17, 2006, DCFS submitted its disposition report. The social worker reported that she had received letters from both mother and father. Those letters indicated that "the parents contentious relationship continues to spiral out of control. Both parents seem to put their own needs for vengeance or retaliation above the needs of their daughter. Despite the counseling and parenting classes they are not able to move beyond their destructive relationship. Their inability to work toward a positive relationship for the sake of the child continues to place the child at risk and it would not be in the best interest of the child to be placed with either parent at this time."
The social worker made the same recommendation in her report dated March 9, 2006, after summarizing Dr. Fairbankss evaluation.
Fathers Restraining Order Against Mother
On May 1, 2006, father obtained a restraining order against mother.
May 11, 2006 Progress Report
In its May 11, 2006, progress report, DCFS documented that mother had completed 11 parenting classes, a 20-session anger management program, and a parents beyond conflict program. She was also actively participating in individual counseling, voicing a strong desire to be the best parent she could be.
Meanwhile, father was attending the men in relationships group weekly and appeared to be motivated and cooperative.
Both mother and father participated in parent/child interactive therapy with Robin, and both were found to be receptive and able to incorporate helpful parenting techniques in the classes. Visits between Robin and her parents were extremely consistent. In fact, on June 1, 2006, the social worker recommended unmonitored visits for both parents.
June 1, 2006, Mediation
On June 1, 2006, the parties participated in mediation. When the case did not settle, it was set for trial.
Contested Disposition
Trial commenced on June 26, 2006. The juvenile court heard testimony from various witnesses and received into evidence a host of documents.
Stick Drive of Taped Telephone Messages and Conversations
During trial, the juvenile court admitted into evidence a stick drive containing taped telephone conversations father had made and alleged to have been mothers voice. The stick drive was admitted and marked as exhibits I and J (tapes I and J); mother objected to the evidence as not being the best evidence, lack of foundation, and prejudice.
Tape I: Father testified that he received the voice message heard on this tape on his work voice mail in late 2003. He indicated that there were hundreds of such calls left to him and that he recognized the voice as that of mother. He transferred the messages heard on the tape to his computer, and it was recorded directly onto his hard drive, where he then saved it as a file onto a computer stick. The reason he did not simply save the message on his voice mail was because that voice mail messages are erased as standard work policy 30 days after the message is left.
He denied altering or changing the message. It was possible that mother left this message in response to a message left by him for her.
Father further stated that the police had completed an investigation concerning the voice messages left at his office, but that the police had not heard this particular recording.
Tape J: Father testified that mother had called him at his mothers home. He taped this conversation by using a tape recorder and saved the audiotape by transferring it to his computer and then to a stick drive. He stated that the audiotape reflected the entire conversation, and that he did not alter the audiotape. He testified that he always told mother that he intended to tape record their conversations, and that she did not care. He did not tell her that he was tape recording her on this particular occasion.
Finally, he summarized that he saved approximately 50 of the voice mail messages that mother had left for him at his office. At the time he started tape recording telephone conversations, there was a criminal court restraining order enjoining him from contacting mother.
Witness Testimony
The DCFS social worker testified first. She believed that Robin should remain in relative foster care, with both parents granted reasonable unmonitored day visits. She explained the present risk to Robin in terms of the parents ongoing conflicts and their inability to put aside their differences. As an example of mother and fathers neverending conflicts, she cited fathers filing in May 2006 of a restraining order against mother.
She wanted to see the parents in joint counseling.
Dr. Fairbanks testified next. His testimony mirrored the findings set forth in his report following the section 730 evaluations.
Then, Dr. Foresteen Forbes testified. She had met with the parents in conjunction with their parenting classes with Robin. She did not believe that mother had a bipolar disorder illness. She also did not believe that mother presented a risk to her child or that she was an inadequate parent.
Mother testified after. She stated that she had seen four different therapists in her adult life. She denied being diagnosed with bipolar disorder. She did not regularly take medication, except a Zanax occasionally. She had never been hospitalized for a psychiatric illness. She denied use of methamphetamines. When asked whether she had ever told anyone that she was going to commit suicide, she explained that she may have said some things that she did not mean or remember, to get fathers attention. She denied that she was depressed.
Mother described her marriage and divorce to be contentious, with instances of domestic violence. While they were married, father called her derogatory and vulgar names in front of Robin, told her no one else would want her, and threw objects at her. The first incident occurred shortly after Robins birth; the last incident occurred on April 22, 2003. The violence escalated over time; in fact, father was dismissed from two domestic violence programs as a result of his continuing threats.
According to mother, father was upset over money issues relating to a home that she owned.
She and father separated on April 22, 2003. Since that time, Robin lived with her. Father had visited Robin a few times after their separation.
With respect to the custody orders, mother believed that she had full physical and legal custody of Robin. That being said, she knew that the custody order changed in August 2005, and she knew that there was a locator out for Robin. She believed that father knew where she lived in Arizona because they had had contact since she moved there.
After hearing tapes played of someone stating that she was going to kill herself, mother denied that it was her voice. She admitted that she may have acted erratic and irrational, but she attributed her behavior to the trauma of her mothers death, which occurred shortly after Robin was born. She claimed that father was unsympathetic.
She admitted to being upset in dealing with Robins preschool staff one day when Robin was found with a bump on her head, and she was called in to get her.
Her recent therapy had been very helpful in dealing with these problems, and also to increase further bond with Robin. Mother indicated that she would cooperate with any visitation orders if Robin was placed in her custody. She expressed concern as to Robins safety if she were in fathers care as a result of his domestic violence history.
Father then testified. He stated that the order of divorce had been overturned as a result of fraud, namely mothers representation that they did not have a child and her false representation that she did not own a home. He acknowledged that there had been an order granting mother sole legal and physical custody of Robin, prior to the August 2005 order granting him custody. He claimed to have signed the divorce papers under duress. Apparently, the sale of a house was a contention in their divorce.
Father stated that he now had partial custody of his two sons (not children of mother). He had lived with Robin since her birth until April 2003 and then "off and on." Since Robins detention, he had been visiting her regularly, and his relationship with Robin was good.
Father indicated that he would comply with visitation orders if Robin were placed in his care. He felt that Robin would be at risk with mother because she went all day with mother in a car, and they were living for a time from motel to motel. He blamed mother for bruises found on Robin at her day care center. He was not aware of any instances of when mother hit Robin. In fact, he admitted that Robin loved mother.
He denied ever having been convicted of driving under the influence of alcohol or of having a current drinking problem. He attended alcoholics anonymous meetings beginning in 1992 "off and on" for about 10 years. He now drinks a beer or two every few weeks. He suffered from depression in the past.
He admitted to being convicted for domestic violence and to violent incidences during his marriage to mother. However, he had been seeing his current therapist weekly since December 2003. He also had completed a 52-week course of domestic violence and 20 sessions of anger management in a group setting. He believed that he had benefited from these classes. He also had completed parenting classes.
Finally, Anna, with whom Robin had been placed in October 2005, testified. She had observed Robin and mother together and described Robin as affectionate with mother. Robin had recently become more emotional and distressed about missing her mother and her cat, and she told Anna that she wanted to go home. Anna had no concerns about mothers care of Robin.
For the most part, father was cooperative with visitation times. She did not observe any actual visits between father and Robin.
Following the presentation of evidence, counsel offered closing argument. DCFS argued that Robin should remain with her current caretaker, Anna, because Robin would be at risk of harm if she were placed with either of her parents. Mother sought to have Robin placed with her. Father moved to dismiss the petition, pursuant to section 390. He also sought to have Robin placed with him. In so arguing, he noted that the family court had awarded custody of Robin to him on August 3, 2005, but he had not been able to take her into his home because DCFS had detained her. Robins counsel urged the juvenile court to make a "home of parents" order.
Juvenile Courts Disposition and Findings
After considering all of the evidence, the juvenile court commented on the witness testimony. It found mothers testimony "almost entirely untruthful; particularly, in the testimony that she gave denying it was her voice on the tape recordings — on the recordings that we heard of the conversations between the parents."
"I find that that was untruthful. I find that almost all of her testimony was untruthful and not believable"; as such, it would not give her testimony "very much weight, at all." While it found fathers testimony evasive and not entirely truthful, "in the main, [it was] believable and deserving of some weight."
Thereafter, the juvenile court found, by clear and convincing evidence, that there would be a substantial risk of harm to Robin if she were returned to mothers custody. "All the evidence indicates to the court that the mother is very emotionally unstable. She exhibited unstable behavior in the past when she did have custody of the child, and that is all in the evidence and Im not going to go through all the evidence in detail."
The juvenile court continued: "Of the two parents, the father is the more stable. So Im going to give custody to the father. In this case and Im going to continue the monitored visits for the mother and put out some parameters with respect to counseling."
Robin was declared a dependent under section 300, subdivision (b), with orders that Robin be placed in fathers home under DCFS supervision, with family maintenance services for father, and with family reunification services for mother.
Mother Appeals
On July 10, 2006, mother filed a timely notice of appeal.
DISCUSSION
I. Substantial evidence supports the juvenile courts order removing Robin from mother
Mother contends that the juvenile courts order removing Robin from her custody is not supported by substantial evidence.
A. Standard of review
In reviewing the juvenile courts findings and disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court; we review the record in the light most favorable to the courts determinations; and we note that issues of fact and credibility are the province of the juvenile court. (Ibid.)
B. The juvenile courts order is supported by substantial evidence
Section 361, subdivision (c), provides, in relevant part: "A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence [that] [¶] (1) There 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 minors physical health can be protected without removing the minor from the minors parents or guardians physical custody." (§ 361, subd. (c)(1); see also In re Henry V. (2004) 119 Cal.App.4th 522, 528.)
In the instant case, substantial evidence supports the juvenile courts removal order. First, according to Jaynes-Bell, the clinical psychologist who treated mother for a short time, mother is dangerous. And, after Jaynes-Bell discontinued treatment with mother, mother made numerous false reports against her and left threatening messages on her voicemail.
Dr. Fairbankss evaluation supports the juvenile courts finding as well. Dr. Fairbanks determined that mother could be somewhat aggressive. In fact, at times, she loses control of herself and expresses herself in an angry and aggressive way. Moreover, she was so defensive that she was unable to be open about her level of potential for aggression with Robin. Dr. Fairbanks concluded that she was histrionic; she overreacts, she can be provocative and theatrical. Finally, Dr. Fairbanks opined that mother projects blame on others, interprets other persons behavior as against her, and feels controlled by others.
Mothers emotional instability is supported also by the transcripts of the taped telephone conversations she had with and the voicemail messages that she left for father. In those messages, she confirmed Dr. Fairbankss assessment that she is overly dramatic. For example, she threatened suicide. When father asked where Robin was, mother refused to inform him of her location.
Moreover, the DCFS social worker testified at the contested disposition hearing that she had concerns about Robin returning to mothers care because of the ongoing conflict between the parents. In fact, the witness stated that DCFS had concerns regarding the potential risk of harm to Robin if she were placed with mother.
And, mothers emotional instability is demonstrated by her abduction of Robin, which led to the initiation of these proceedings.
Mother asserts that there is no evidence of her present emotional state; all evidence pointed to her past emotional instability. This contention fails. Past conduct is probative of current conduct. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) And, there is substantial evidence that mothers emotional state has not improved such that the juvenile courts order should be set aside. For example, mother has continued to display dishonesty. She made misrepresentations to Jaynes-Bell in 2003. She fraudulently indicated on her petition for dissolution of marriage that no minor children were involved. Despite the fact that mother has received therapy and other treatment, the juvenile court found mothers testimony completely not credible.
Even in her appellate opening brief, mother admits that she lied at the hearing.
Mothers participation in therapy and other support services does not compel a different conclusion. While mother may be actively participating in therapy, she failed to overcome the evidence that led the juvenile court to find her a substantial risk of harm to Robin.
It follows that there were no less drastic alternative means available to the juvenile court, short of removal from mother, to protect Robin. Having found that mother was not truthful, the juvenile court properly determined it could not believe that mother was capable of caring for Robin while under DCFS supervision. While we commend mothers efforts to better herself, we cannot conclude that the juvenile court erred by refusing to place Robin with her under strict DCFS supervision.
II. The juvenile court properly placed Robin with father
Mother contends that the juvenile court erred in placing Robin with father after it removed Robin from her custody.
A. Standard of review
This court reviews a juvenile courts custody placement orders under the abuse of discretion standard of review; the trial court is given wide discretion and its determination will not be disturbed absent a "manifest showing of abuse." (In re Sarah S. (1996) 43 Cal.App.4th 274, 286; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) We consider all of the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial courts decision; the test is whether any rational trier of fact could conclude the placement order promoted the best interests of the child. We will uphold the ruling if it is correct on any basis, regardless of the ground relied upon by the trial court. (In re Robert L., supra, at p. 1065.)
B. The juvenile court properly placed Robin with father
Ample evidence confirms that the juvenile court acted well within its discretion in placing Robin with father after it removed Robin from mothers custody. According to fathers therapist, father is a "kind, distraught, gentle man who love[s] his children very much." He was actively participating in counseling, and was receptive to what he was learning in therapy, including being able to incorporate helpful parenting techniques. Moreover, visits between father and Robin were consistent and positive. In fact, he testified at trial that he had a good relationship with Robin. And, importantly, father wanted custody of his daughter.
Furthermore, father testified that he would comply with visitation orders if Robin were placed in his care.
In light of all the evidence presented at trial, the juvenile court acted within its discretion in placing Robin with father. There are no grounds to reverse.
III. The juvenile court did not abuse its discretion in admitting the taped recordings
Finally, mother argues that the juvenile court erred in admitting the two stick tapes of telephone conversations between mother and father and telephone messages that mother left for father. As mother concedes, we review the trial courts evidentiary rulings for abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.)
Mothers arguments notwithstanding, we conclude that the tapes probative value outweighed their purported prejudice. They revealed mothers emotional instability. Moreover, the tapes were relevant as to mothers credibility, or lack thereof. As she readily admits on appeal, mother lied when asked whether it was her voice on the tapes.
We are not persuaded by mothers contention that she was "realistically precluded" from offering her own evidence of tape recordings. Just because father may have had the acumen and capability to make tape recordings does not compel the conclusion that mother could not have done the same. And, nothing precluded mother from offering evidence other than tape recordings in support of her arguments to the juvenile court.
DISPOSITION
The juvenile courts order is affirmed.
We concur:
BOREN, P. J.
DOI TODD, J.