Opinion
F087017
05-29-2024
In re N.P. et al., Persons Coming Under the Juvenile Court Law. v. KRISTOPHER P., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Janette Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Ana M. Ovando, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County Super. Ct. Nos. JD141223-01, JD141224-01, Susan M. Gill, Judge.
Janette Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Ana M. Ovando, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Kristopher P. (father) appeals from a declaration of dependency with review of a Welfare and Institutions Code section 300 jurisdictional finding for his minor children, N.P. (age 7) and K.P. (age 4) (the children). Father argues substantial evidence does not support the juvenile court's order detaining the children at the initial detention hearing, or the juvenile court's jurisdiction and disposition order which found clear and convincing evidence there was substantial risk of detriment to the children if placed with father.
Statutory references are to the Welfare and Institutions Code unless otherwise noted.
We find substantial evidence supports the juvenile court's order finding the Kern County Department of Human Services (the department) stated a prima facie case the children fell within section 300 at the initial detention hearing. Likewise, we find the department made reasonable efforts to prevent the children's removal from custody. We also find substantial evidence supports the juvenile court's order that there was clear and convincing evidence there was a substantial risk of detriment to the children if placed with father, and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Present Juvenile Dependency Petition
On May 2, 2023, the department filed a juvenile dependency petition alleging the children came within the provisions of section 300, subdivisions (a) and (b)(1). The children were detained the day prior on a protective custody warrant.
The petition alleged there was a substantial risk the children would suffer serious physical harm inflicted nonaccidentally by their mother, D.V. (mother). The petition alleged mother slapped N.P. on his legs and torso and hit him with a television remote and a fly swatter. On July 21 and July 23, 2020, N.P. had lacerations on his legs and his arm, as well as faded bruises on his back allegedly caused by mother.
The petition additionally alleged there was a substantial risk the children would suffer serious physical harm or illness by mother's inability to provide regular care due to her mental illness. The petition alleged that on February 11, 2023, mother killed a cat by slamming the cat against the wall several times throughout the day. The petition further alleged mother killed several cats in the home since December 2022, and in April 2023, reported that she liked watching the cats suffer. Mother also made statements that she was going to drive off of a mountain with the children in a car.
Prior Juvenile Dependency Proceedings
In July 2020, a referral was received alleging general neglect of the children against father. The referral stated father and the children resided in a hotel and were moving out with no subsequent residence. Father would call mother daily to ask for food, diapers, formula and wipes. K.P. had eczema which father did not medicate and old scars which she had scratched open.
Social service worker (SSW) Norma Valdivia met with father to address the allegations. Father indicated he was granted custody of the children after mother was accused in family court of beating the children. Both father and mother confirmed the allegations of neglect. During the investigation, father disclosed he had been taking the children to mother's home, and that N.P. had been coming home with different marks on his legs and arms, and bruises on his back. Father thought the children were abused in mother's home but continued to drop them off with mother. SSW Valdivia was unable to interview N.P., and K.P. was only nine months old at the time. SSW Valdivia observed father's housing was unstable and there was limited food available for the children.
On July 24, 2020, a petition was filed on behalf of the children due to father's failure or inability to adequately supervise or protect the children. The children were temporarily detained on July 28, 2020.
An amended section 300, subdivision (b) petition was filed on behalf of the children on August 14, 2020. The petition alleged, in general, that the children have suffered or there was a substantial risk they would suffer serious physical harm or illness as a result of the failure or inability of father to adequately supervise or protect the children. The petition alleged on July 9, 2020, father was granted temporary sole legal and physical custody of the children based in part on domestic violence between father and mother. On July 21 and July 23, 2020, N.P. suffered injuries, including lacerations on his legs and arms, and bruises on his back, and father believed the injuries were caused while N.P. was in the care of mother. On July 31, 2020, the children were ordered detained from mother and released to father. On August 13, 2020, father left the children in the care of mother without any supervision, despite father's belief that mother injured N.P.
Proceedings culminated in a contested jurisdictional/dispositional hearing on January 15, 2021. All counts and specific allegations in the August 14, 2020, petition were found true. The children were not released to mother due to concerns of documented domestic violence between the parents, and the issues of N.P., that demonstrated an exposure to domestic violence.
On April 1, 2021, the children were adjudged dependent children of the juvenile court and ordered removed from the parents. Family reunification services were ordered. On March 22, 2022, a review hearing was held and the parents were awarded joint physical and legal custody of the children and jurisdiction was terminated.
Detention Report-May 3, 2023
On April 17, 2023, the department received a referral alleging general neglect of the children against father. The referral stated that mother works 12 hours a day and pays all the bills, and father does not work. Father hides mother's car keys and phone, accuses mother of cheating and says she is crazy. Father also does not take N.P. to school and threatens to take the children from mother.
In a later report, N.P.'s school informed N.P.'s caretaker that N.P. had missed a lot of school or was often late prior to being detained.
On April 21, 2023, a referral was received alleging general neglect of the child, N.P., against mother. The referral stated that mother and father had been separated for about a week, and that mother was threatening to hurt herself and the children if father did not return her car and other belongings. A welfare check revealed the children were happy and safe and mother appeared fine.
On April 26, 2023, a referral was received alleging general neglect and emotional abuse of the children against the parents. The referral stated in part that over the last six months, father had seen mother "torture and kill at least 10 cats." The cats belonged to the family and father had video of mother torturing one of the cats-slamming it against the wall until it was dead. Father stated he had spanked his son, N.P., with an open hand, and it had left bruises on the child. Mother had moved out of the home with the children.
On April 26, 2023, SSW Nicole Mozier contacted father. Father said mother left the house on April 18, 2023, and took the children. Father had called the Kern County Sheriff and went to the maternal grandmother's house to try and get them and had been working to file for custody. He was in contact with the sheriff several times to request welfare checks and N.P. had called him from a closet and told him" 'mom's crazy.' "
Father also stated that mother appeared to have mental health issues and refused to see a doctor. Over the last six months, cats had been disappearing or been found dead in the bathroom, and when father asked about it, mother said one fell off of her shoulders and hit its head on the sink and died. Father did not believe her and put up a nanny camera in the bathroom. He caught mother on video killing the cats, and confronted her about it. He also caught mother hitting N.P. on video. She would hit N.P. with her hand and left a bruise on his hip on April 1, 2023.
Father said there were no issues prior to the cats missing and he had not spoken with the maternal grandmother. Father then showed SSW Mozier a series of text messages between him and mother, where mother stated, "I told you I will drive off the bluffs with my kids if you don't give me my stuff back," and "I told you if you tell anybody about me killing the cats then I will make sure that you never get my kids and if I have to lie then I will lie."
SSW Mozier and SSW Jasmine Delgado made contact with the maternal grandmother on April 26, 2023, at the grandmother's home. Mother was at work and the children were playing in the backyard. They appeared clean and well dressed. SSW Mozier and Delgado spoke with the children's maternal aunt who said she was concerned about father, who she described as "possessive and neglectful of the children." She said father would drop the children off at the grandmother's home and K.P.'s diaper was always dirty and she was not dressed properly, and N.P. would always say he was hungry. The aunt said mother was scared of father and had filed for a restraining order and custody of the children.
SSW Mozier and Delgado spoke with the children. K.P. was difficult to understand. N.P. said he was ok, but seemed uncertain and said," 'my dad is crazy, he's trying to take us away from our mom.' "
On April 27, 2023, SSW Mozier made contact with father. Father explained that mother would threaten to harm herself when she did not get her way, but never made any attempts. Regarding the cameras in the house, mother was aware of the camera in the living room but not the one in the bathroom. Father showed mother the videos of her killing the cats on April 17, 2023, at which point she started to yell and scream at him that she hated him and would take the children and leave. Then on April 18, 2023, she took the children to her mother's home. When asked about reconciliation, at this point father stated," 'if she gets help, I'm more than willing to take her back.' "
SSW Mozier reviewed two videos depicting mother hitting N.P. in the living room. In one video, mother slaps N.P. with an open hand on his legs and side multiple times. In the other, mother hits N.P. on top of his head with something orange and N.P. falls to the ground.
On April 27, 2023, father was served with mother's restraining order by the maternal uncle and had to allow mother to get her belongings from his home. Father told SSW Mozier that mother and aunt trashed his home and stole his things.
On April 28, 2023, SSW Mozier made contact with mother. Mother said that father harasses her and is" 'psychotic'" and" 'obsessive.'" She also stated that she suspects he uses unknown drugs and neglects the children. Mother said the reason she left was two to three weeks prior she had lost her phone, then found father had it and was going through it. Father accused her of cheating and was stalking her, listened to her phone conversations and had cameras in the house. He checked her underwear for semen. He also told N.P. that she was "a cheater and a cat killer."
When asked about the cats, mother explained that father had lied about there being a camera in the bathroom so she had to do something" 'outrageous'" to get him to admit it, so she" 'messed with the cat.'" She then said," 'I killed no cats'" and the" 'only way was to get aggressive with the cat.'" She said the cat did not die. She said there were other cameras in the kitchen and living room, and the living room camera had been put up" 'a couple of months ago.' "
When asked about hitting N.P., mother denied hitting him, and said she would only spank him. She said father would get aggressive and grab N.P. by his shirt and say" 'I'm gonna f[**]ck you up.'" Mother had no plans to reconcile with father and was worried father would kidnap the children or murder them.
Program specialist Sarah Warner watched three videos regarding mother's treatment of the cats. In the first video, dated February 11, 2023, mother picks up a black cat and slams it against the wall several times, yelling and cursing. In the second video on the same date, mother reenters the bathroom and grabs something on the floor. A cat is heard crying out. Mother then starts stomping and kicking the floor where the cat was before leaving. The cat continues to cry out. Mother then comes back and arranges the bathroom then closes the door. In the third video, which is undated, mother picks up a gray and white cat after calling it to her, then abruptly holds the cat over her head and slams it into the ground. Mother then states" 'I hate you cat.' "
On April 28, 2023, a second referral was received alleging general neglect of the children against mother. The referral stated mother "had a gun she intended to use on herself" and that the children are with mother. Kern County Sheriff's Office responded to the home and found the allegations to be unfounded. The sheriff's office had responded to the home three times within the last 24 hours due to father.
On April 29, 2023, SSW Mozier received several text messages from father of screenshots of a text exchange between father and mother. In the exchange, mother made statements such as "I took your kids and you thought you would be able to protect them but you were wrong so I told you that I would win. [¶] … [¶] I'll hit the kids how I feel so what are you going to do about that." Father responded, "I'll report you then," and mother stated, "Do it if you think I'm such a bad mother report me I'll kill anyone that try's [sic] to take my kids." Mother also stated "I dgf [sic] about that dam [sic] cat he died to [sic] easy anyway I like watching them suffering."
On May 1, 2023, SSW Mozier, Delgado and the Kern County Sherriff went to place the children into protective custody. When they arrived at the residence, mother met them and loudly told the children the department employees were there to take them and it was all their father's fault. N.P. ran out and said his father had choked him. When SSW Mozier asked if N.P. had been told to say that by mother, he said no.
The cats were discussed, and N.P. said it was" 'just a cat'" and that" 'cats don't matter.'" SSW Mozier told mother the children were going into foster care and not with father. Mother said she did not do anything wrong, and SSW Mozier said she had seen the videos that showed otherwise. Mother replied that "the cat didn't die."
In the car, the children were talkative. SSW Mozier could not understand K.P., but N.P. said that his father was bad and everything was his fault. He said his father hit him. When asked if his mother hit him, N.P. said no, but robot mom did." 'Robot mom'" was a "robot that looked like his mother and had a voice box to sound like her." His father built robot mom" 'because he likes moms.'" Robot mom hit him with a remote and a fly swatter and also killed the cats. When asked about how he knew about the cats, N.P. said his father showed him the video. He could tell his mother apart from robot mom because his mother was tired from work and the gym, and robot mom never sleeps.
N.P. then told the department staff how he" 'just knew'" his father killed his grandfather. He also said the prior night his father was in his bedroom at his grandmother's home with a pistol, which he could hear. Then N.P. started to cuss, saying" 'f[**]ck'" and he would" 'f[**]ck him (father) up.'" When asked where he heard that kind of language, he said his father and robot mom cussed. SSW Mozier said the children would not be allowed to talk like that where they were going and N.P. agreed not to cuss anymore but continued to do so for the remainder of the trip.
N.P. continued to tell disturbing stories. He said his father gave him a urinary tract infection from a drink. When asked about a small mark on his hand, he said his father put a poisonous spider on him which bit him. He said he heard his father kill his cousin "16 years ago" when he was in his mother's stomach. He then went on about how his father was" 'the devil in my head'" and how father tried to kill the whole family except for him. Then robot mom had shot his father in" 'the balls.' "
On May 2, 2023, SSW Mozier contacted father. Father said he went to an ex parte custody hearing but the court told him to wait because child protective services was involved. While SSW Mozier was speaking with father, father began talking with another male, later identified as a police officer. Father stated he contacted officers because mother had rear-ended him as he was leaving family court and her front bumper was coming off. SSWMozier ended the call with father, then contacted mother. Mother was on her way to work and confirmed she had also attended the hearing. She denied rear ending father or that her car was damaged. She said father started to chase her when she left and that he always tries to make her seem like" 'the bad guy.'" She had been together with him for eight years but was not married. When asked about the cat videos, she said," '[t]he cats were never hurt'" and that" '[i]t's funny how the videos weren't a problem when we were together, but now that I am trying to separate from him, they are.' "
Initial Detention Hearing-May 3, 2023
On May 3, 2023, the juvenile court held an initial detention hearing. Father requested a section 322 continuance to explore the possibility of placing the children with him. The court made a temporary detention finding as to the children and found a prima facie showing had been made that the children came within section 300, there was a substantial danger to the physical health of the children, that the children were suffering emotional damage and there was no reasonable means to protect the children's physical or emotional health without removal of the children from the parents' physical custody. The court further found reasonable efforts had been made to prevent or eliminate the need for removal of the children from the physical custody of the parents. Supervised visits with the parents were ordered twice weekly for two hours.
Supplemental Detention Report-May 5, 2023
On May 3, 2023, after the hearing, SSW Valeria Lopez met with mother. Mother stated that father was a manipulator. She had been in a relationship with father for eight years and this was the second time she has tried to leave. She said father did not want her to have the children unless they were together as a family or he had them on his own. She confirmed she did not plan to get back together with him.
She moved in with her mother on April 16, 2023, and sought a restraining order on April 21, 2023. She said father harasses her, hacks her phone using a laptop and violates the restraining order all the time. She said the text messages he sent the department were fake and offered to show SSW Lopez her phone, although SSW Lopez declined.
SSW Lopez discussed the allegations with mother, who claimed she uses timeouts to discipline the children. She admitted she hit N.P. with an open hand but did not leave bruises. She said father had hit N.P. with a fly swatter and a belt, is rough with him and cusses at him. She denied either of them hit K.P.
When asked about the cats, mother first denied it. When SSW Lopez stated she had seen the videos, mother said" 'it was only one cat.'" Mother then said she did it to find out the location of the hidden camera. Mother said that N.P. was usually well behaved, but that father" 'puts things in his head.'" When asked about robot mom, mother did not know who that was, but believed that was something father taught N.P.
When asked about drug and alcohol use, mother denied using any substances, but believed father used drugs. She said she found a pipe in the bathroom and a white bag with white rocks in her car once, but father denied they belonged to him. She said she had smelled burning plastic from the bathroom and believed it was" 'meth.' "
Mother said she would like the children to be placed with the grandmother, who cared for them during the last dependency case. Mother was willing to move out and rent a room. She said she would likely be evicted from the address where father is staying because father does not have a job to pay rent. SSW Lopez said that father alleged to own a business, and mother said that was a lie. She stated," 'If you don't think the kids are safe with me, they are definitely not safe with him.' "
On May 3, 2023, SSW Lopez also met with father. Father stated mother left on April 17, 2023. He explained that between November and December 2022, the family went through about 16 pet cats. He said mother would tell him the cats ran away, although one day he came home and there was a dead cat on the floor. Mother said the cat died when it fell off of her shoulders. Father said he did not believe her and put up cameras in the home around the end of December, beginning of January, 2023.
The cameras were initially set up because N.P. was hitting his sister. Mother knew about the cameras, except for the one in the bathroom. Father said he would not leave the camera in the bathroom while mother was showering, but then claimed he forgot about the cameras because in January 2023 he started volunteering on weekends and was out of the house. He said he recently found the camera and realized it was still working. He claimed he reviewed the footage on April 16, 2023, and confronted mother about the cat videos then. He denied knowing about the animal abuse prior to April 16, 2023.
When asked about discipline, father denied hitting the children. He said he uses timeouts or takes their toys. He said N.P. had a bruise on his side recently, and when questioned, said" 'mommy did it,'" but other than that he had not seen any other concerning bruises or marks on the children. He described mother as a" 'good mom'" who cooks, cleans and cares for the children. He had not observed mother hurt animals in the past and said she had made threats to kill him and/or the children twice in the past,-most recently due to the cat incident, and previously due to her infidelity.
Father then described an incident that occurred on Easter where mother was changing in front of him and he saw she was wearing yellow underwear, but later she had different underwear on. He questioned her about it, and now mother claimed that he checks her underwear for semen to see if she is cheating, which he denies doing. Father said they had been together for almost 10 years and the relationship was" 'good,'" and they get along" 'fine.'" He said they do not argue in front of the children, but rather do so by texting.
When asked about domestic violence, father denied any current or prior history. When informed about the prior dependency case, father said he falsely reported domestic violence and filed a restraining order in order to get custody of the children.
When asked about substance use, father denied using drugs or alcohol. He said that recently mother had accidentally called him and he heard mother's sister telling mother to report that father uses drugs so that he does not get the children. When asked if he was willing to volunteer to take a drug test, he said," 'I don't want to if I don't have to'" but was otherwise willing. He stated he does not like giving his DNA to anyone.
When asked about employment, he stated he owns his own business and is an electrical engineer. He mainly works part-time due to the COVID-19 virus but confirmed he would be able to financially support the children. Father stated he was arrested in another county on Tuesday. He claimed he was pulled over and gave the officer his full name, including his middle name. Father's middle name resembles his twin brother's name. The officer misheard and father is now being charged with providing false identification.
May 2, 2023.
When asked how he would protect the children if they were released to him, he stated he would contact law enforcement if mother showed up and would not allow her to come over. He said he did not plan to get back together with mother now, but if she got help and the court said it was okay, then he would consider it. He said his priority was the children and that was all he cared about. SSW Lopez cautioned him that he had a history of getting back together with mother, and father was adamant that it was a mistake and would not happen again. He did ask how mother was doing and commented that he did not like to see her cry. He did not inquire about how the children were doing.
On May 4, 2023, SSW Michael Fabro completed a home inspection of father's home. SSW Fabro noted glass shards in the entryway to the home, which father said came from mother and her relatives breaking into the home on May 2, 2023, and stealing his belongings. Father showed SSW Fabro video tapings of the alleged burglaries. SSW Fabro asked if father was willing to drug test, and father said he was skeptical with providing samples which may contain his DNA. The home was otherwise clean and contained adequate food and clothing for the children.
On May 4, 2023, SSW Airianna Allen met with the children in their placement home. SSW Allen spoke with each of the children alone. N.P. asked why he was in the placement home and not with his mother, and SSW Allen told him because it was not safe for him to be with his parents. N.P. said," 'my mom doesn't want to kill herself.'" SSW Allen asked him if he could explain what that means, and N.P. began to tell SSW Allen that his father made a robot mom to kill cats. N.P. then said that his father told his robot mom to hurt him and his sister, give them bruises, and be mean to them. He said he had seen robot mom be mean to the cats and she was always trying to kick them. Robot mom made him feel scared and he called 911 "a million times." N.P. went on to say that robot mom kills everything including baby animals and human babies.
When asked if he had ever seen his parents be mean, N.P. said he had seen his father trying to choke father's brother out. He had left N.P. at his brother's house for a long time when N.P. was five years old. N.P. also said his father had a pistol and he had seen it many times. His father gives the pistol to robot mom and tells her to shoot everything. N.P. said his father has let him hold the pistol and let him kill German soldiers with it. When asked if he was referring to a video game, N.P. said it was real life but he could not remember when it happened. N.P. said his parents beat his cousins with a pistol and would spy on them when they went into the bathroom. He said both of his parents were "the only demons in his mind."
While unclear in the supplemental report filed on May 5, 2023, it is clarified in the subsequent hearing that this is in reference to father's brother.
SSW Allen asked what his mom does when N.P. gets into trouble, and he said his" 'real'" mom makes him stand in the corner for five minutes. His robot mom beats him with a belt and kicks him in the genitals. He also said his" 'real'" mom gives him food when he is hungry but robot mom does not feed him or his sister. When asked about his father, N.P. said his father beats him with a belt or a fly swatter. On his sixth birthday, N.P. said his father chased him around the house with a belt. He explained his father beats him because his father said he needs to "have respect." N.P. then said," 'I don't even know what respect is.'" When asked if he knew why his father chased him around the house with a belt, N.P. said it was because his father lies.
When asked if he liked living in the placement home, N.P. said he did not, because he was afraid of the caregiver's dog. He was also afraid to go to the bathroom alone because of "El Cucuy." N.P. explained that his father told him that El Cucuy was going to take him and his sister away from their mom.
The department did not recommend the children be placed with either parent, finding that mother has allegations filed against her, but that father displays paranoid and controlling behavior, admitted to lying about domestic violence allegations and did not inquire about the children's well-being. N.P.'s reports about father's behavior also raised safety concerns.
Continued Detention Hearing-May 5, 2023
On May 5, 2023, the juvenile court held a continued detention hearing. Father called SSW Lopez as a witness, who testified about the supplemental detention report. She indicated she would discuss filing an amended petition with allegations against father. She also confirmed father's home met basic community standards.
Father also testified. He confirmed that he falsely reported domestic violence in 2019 so he could get custody of the children. However, he said he now obtained a restraining order and the allegations in it were true-that mother was abusive toward animals and the children. Father also stated he cleaned up the glass shards seen in the home, and the home was open to the department any time. When asked how he would protect the children if mother came by, father stated he would call 911 and would not let her into the house. When asked if he had ever choked his brother, he said he had not, that his brother lives in Canada and they had not seen one another in seven or eight years. He denied ever hitting N.P.
The juvenile court found there were serious issues with credibility as to both parents. There were issues of ongoing disputes and disagreements and "warfare" between mother and father and the children were caught in the middle. The court found both mother and father's behavior was indicative of the need for mental health services. As to father, the court noted serious issues with credibility starting with the prior dependency case and continuing into the present case.
The juvenile court commented, "There's red flags as to [N.P.] Maybe [N.P.] doesn't have a lot of credibility, but the things that the child is saying and his fears, and about robots, and about things coming to get him in the night and take him away from [r]obot [m]om, tell me that [d]ad is telling him things that are causing issues. They're clearly caught in a battle between these two and the children, particularly [N.P.], is demonstrating unhealthy behaviors indicative of being placed in the middle of battles between adults."
The court stayed with its initial temporary detention finding for the reasons stated in the initial detention report and petition and supplemental report, and ordered the children detained pending the jurisdictional/dispositional hearing.
Jurisdiction and Disposition Report-May 24, 2023
On May 6, 2023, the department came into possession of a crime report from the Kern County Sheriff's Office. The report stated that on May 6, 2023, at approximately 4:51 p.m., an officer responded to a call from mother, who said father was actively following her car and violating a domestic violence restraining order. Mother drove to a nearby police station. When the officer arrived in the area, he observed mother's car parked along the road, and father's car parked behind her. The officer parked behind father's car, at which point father placed his head out of the window and began yelling," 'there is pc to arrest her, there is pc to arrest.'" Father was detained and placed in a patrol car.
Mother stated that she was leaving her home at around 4:40 p.m., when father passed by in his car. He immediately maneuvered his car behind mother's car and began following her along several county and city roadways until she arrived at the police station. In addition to following her, mother stated father sent her approximately 100 text messages that day, starting as early as 3:00 a.m. The officer viewed the messages, which were described as "constant harassment to threats that he would have [mother] arrested for felonies if she did not 'fix' their relationship and get back together." One message stated," 'Now it's my turn to ruin your life.' "
Mother displayed overwhelming concern for her safety and the safety of her children and family due to father's changing demeanor and escalating behavior combined with suspected narcotic use. Mother said she believed that he would not stop violating the order and said," 'I feel like this man … is capable of f[**]cking killing me.'" Mother said father had made allegations of infidelity against her, and said," 'Why you f[**]cking around, your [sic] just going to get yourself and that person killed.' "
The officers then spoke with father, who said mother had burglarized his residence on a previous date and stole a cellular device. Since the burglary, father claimed mother had been using the device and an online account to continuously text herself and portray him in a certain manner. Father claimed that when he saw mother drive by her residence, he contacted the Bakersfield Police Department and a dispatcher instructed him to" follow'" mother and provide her location to them. Father claimed the unidentified dispatcher informed him there was" 'pc to arrest'" mother and he needed to report her final location so that officers could be dispatched to arrest her.
A record check revealed mother had no active warrants. When asked whether father was aware of the restraining order against him, he stated he was. He was also aware that the order was a" 'no'" contact order. As the officer continued to speak with father, father demanded the officer be aware that mother had killed approximately 16 cats. As the officer attempted to redirect the conversation back to the immediate events, father would not accept that he had violated the restraining order and demanded to be let go. While preparing to be transported, father made several remarks about the other deputies on scene-that they had not been interviewing mother but in fact were trying to "pick up on her."
On May 8, 2023, human services aid Ashley Martinez documented a visit between father and the children. Father's interactions with N.P. were described as "clashing." N.P. asked father if he still had the tablet at home, and father said mother had broken into his home and stolen it. He then said mother was in jail. N.P. mocked father by repeating his words, which made father upset. N.P. asked if they could go visit their mother in jail, and father said they could not because he did not know how the jail conducted visits.
On May 10, 2023, SSW Estela Ramirez spoke with father. He informed SSW Ramirez that mother was in jail for breaking her restraining order and breaking into his home and stealing evidence he had against her. He stated he had video footage of mother breaking into his home on May 2, 2023. He stated he was "officially done" with mother and would never get back with her.
Unprompted, father then began talking about an incident around Easter that year, where mother "made" father give her new underwear, and he noticed she had been wearing yellow underwear. He believed mother was "attempt[ing] to make it seem like she had been wearing the same underwear and [father] believed [she] had been cheating on him as it was not the same underwear."
SSW Ramirez redirected father to visitation, and father stated he believed the children may be returned to him at the next hearing. He then stated that mother had slept with his best friend and he claimed the mother "planned on doing it again." According to father, mother has a" 'b[**]ch'" attitude.
Father then stated that N.P. would watch a lot of online videos because mother and grandmother would allow it, and that he had a wild imagination. He said mother would not work with K.P. while he was deployed and that may be why K.P. needs assistance with her speech. He also said mother's siblings were toxic to the children and spoke poorly about him in the children's presence. He said he had a voicemail where he could hear mother and her sister talk poorly about him in front of the children. He also said that mother had been "sleeping around" and would leave at night to "do what she needed to do."
On May 11, 2023, SSW Ramirez received a call from father stating that mother was "messing around" with a man who had a "concerning background." Father stated the man had a criminal background and he was worried mother was bringing the man around the children. He then played a voicemail he claimed was mother and her sister speaking poorly about him, but the voicemail was inaudible. SSW Ramirez reminded father he had a no contact order with mother and scheduled an in-person interview.
During the interview, father stated he had not started taking classes because his attorney told him he did not need to participate in his case plan as he had "done nothing wrong." Father stated he would "most likely" have the children back by the next court date. Father stated he would try to seek therapy but declined drug testing.
On May 12, 2023, SSW Ramirez was texting with father to set up a visitation schedule. Father sent SSW Ramirez a lengthy text about cheating as a form of domestic violence.
On May 15, 2023, SSW Ramirez received a phone call from mother stating father had been telling her she would not be getting the children back. SSW Ramirez advised mother not to respond. Mother stated father had stolen her wallet out of her car while she as at work and was falsifying text messages between the two of them. She stated father continuously harassed her, and father and his brother were "plotting" against her.
That day, mother had a visit with the children. Father was found to be driving by the location of the visit. Mother reported father tracks her cell phone and was advised to turn off her tracking or to obtain a new cell phone.
On May 16, 2023, SSW Ramirez received a text from mother with screenshots of a text conversation between her and father. In the exchange, father says "sooner or later you're going to end up in prison my brothers [sic] doing everything he can to make sure that happens he just waiting on me to tell me yes or no" and that it "would've been easier just to compromise and just work things out you seriously don't understand the situation right now my brother wants to do everything he can to sabotage any possible way any of your family can get those kids BPD they're ready To [sic] step in.…" SSW Ramirez advised mother to avoid escalating the situation, and mother said the texts were sent as soon as the meeting was over and that if she does not respond father would act on what he says. Mother stated father initiated the conversation.
On May 17, 2023, SSW Ramirez received a text message from father claiming mother had access to father's online account and was texting herself to make it appear as if he was texting her. Father claimed mother could "unsend" his messages and claimed mother was "caught" by the Bakersfield Police Department the prior week "sending herself messages because [of] the big video" and it was marked down "in the police report."
A couple of hours later, father sent screenshots of a conversation he claimed he had with mother, where mother threatened to kill herself and her children at the next visit. He then sent follow up texts with screenshots, where mother allegedly said, "I will become real psycho and massacred [sic] everything in my way[.] If you don't wantme [sic] to hurt myself and my kids at my next visitation then you better do what I say or I'll do it[.]" Father replied "I'm going to block you because you're not following the restraining order." Mother replied, "I am going to call the social worker and tell her your [sic] lying." The report does not indicate any follow-up calls with mother at that time.
A record review indicated mother had a pending misdemeanor charge for cruelty to animals in violation of Penal Code section 597, subdivision (b), as of May 15, 2023. Mother also had a first degree burglary charge in violation of Penal Code section 460, subdivision (a), rejected by the Kern County District Attorney on May 17, 2023.
Father has a pending misdemeanor charge for violating a domestic violence court order in violation of Penal Code section 273.6, subdivision (a), and a pending felony charge for stalking in violation of Penal Code section 646.9, subdivision (a).
Jurisdiction and Disposition Hearing-May 25, 2023
On May 25, 2023, the juvenile court held a combined jurisdiction and disposition hearing. Both parents requested a continuance to review the report filed the previous day. Father then renewed his request that the children be released to him. The department opposed and indicated that it considered filing an amended petition with allegations against father but chose not to because father was not the custodial parent at the time the children were removed. Mother and counsel for the children also opposed placement with father.
The juvenile court ruled as follows:
"THE COURT: Let me be clear when I said I haven't had a chance to read this entire report. I have read the first 25 pages of the report, and then I skipped ahead and read the analysis in the report, and it didn't take me 25 pages to see that there is a risk to these children in the care of the mother and risk to these children in the care of the father.
"The mother and father have a toxic relationship. Yes, the father came forward with his video evidence that was very disturbing. I have not seen it but it's disturbing enough just to read about it, about what the mother was doing. But I've also read about the children's statements. The children are very confused, very manipulated by both parents, I believe. And I have serious concerns for the ability of either parent to exercise appropriate care and judgement for these children.
"[Counsel], you asked what kind of case plan needs to be offered to the father, I would say individual counseling, and the counselor needs to see this report. Because the father has-the father didn't come forward when he found out the mother was doing what she was doing to the cat. The father came forward months later when [m]other moved out of the house.
"So he was having the children be in the mother's care, or at least with the mother. The catalyst, if you will, for him coming forward was her leaving with the children, it wasn't his fear for the children in her-with her being in the home. So we're talking videos that were captured, I believe it was February. There were three videos, two of them had dates on them, one of them was February 11th at-I think that's 6:21 in the evening, and the other one was February 11th at 6:22 in the evening. Mother left April 16th, or so, with the children. That's when father came forward.
"THE FATHER: Your Honor, I object
"THE COURT: No, it's my turn now, not yours. And [you] don't get to object, your attorney does. I'm not done.
"So I'm not basing my denial for placement of the children with the father based on his lack of credibility that was demonstrated in the initial dependency, but I think that can be considered going forward, in terms of evaluating his credibility. But I agree, we don't make decisions on where people start in dependency.
"So I'm denying the request for placement with the father, and I think father needs serious individual counseling, as does [m]other."
Disposition Report-June 6, 2023
In addition to prior described and documented events, the report described the following. On May 19, 2023, SSW Ramirez spoke with mother by phone. Mother stated that father was still harassing her and still wanted to "get back" with her. She said that father told her if she did not drop her restraining order and did not return with him, he would make her life difficult. SSW Ramirez asked if mother had thoughts of hurting herself or taking the children, which mother denied. Mother said father intended to terminate his rights and give the children over to his brother, which she was not comfortable with.
On May 22, 2023, SSW Ramirez met with mother in person. Mother stated that father made a video call to her on Friday when he was visiting with the children because the children wanted to see her. She stated father had asked her to drive by the department so the children could see her, but mother said she could not do that.
May 19, 2023.
On May 23, 2023, SSW Ramirez made contact with a paternal relative who requested to remain anonymous regarding threats made by father. SSW Ramirez stated that she received details regarding an email stating that father was making threats to harm family members who obtained placement of the children.
On May 25, 2023, father contacted SSW Ramirez by text. Father sent a string of messages alleging the department was twisting his words, violating his civil rights and failing to do their jobs. Father was told to direct any questions about his case to his attorney.
Continued Jurisdiction and Disposition Hearing-June 8, 2023
On June 8, 2023, the juvenile court held a continued jurisdiction and disposition hearing. The court confirmed compliance with the Indian Child Welfare Act and confirmed it had read and considered the jurisdiction report submitted on May 24, 2023, and the disposition report submitted on June 6, 2023. With respect to the petitions filed on May 2, 2023, as to the children, the court found both the allegation in count one, pursuant to section 300, subdivision (a)(1), and the allegation in count two, pursuant to section 300, subdivision (b)(1) to be true. As to jurisdiction, the court found the children to be persons described by section 300, subdivisions (a) and (b). Prior to disposition, father requested a psychological evaluation, and the matter was continued.
Psychological Evaluation-July 11, 2023
On July 11, 2023, Dr. Michael Musacco completed a psychological evaluation of father. Dr. Musacco found in part:
"The [f]ather did not describe or present with symptoms of a traditional mental disorder. [¶] However it appears that the [f]ather has exhibited a pattern of lying. He made several comments to the undersigned which appeared to be extremely farfetched. Several of these comments seem to be gratuitous and unnecessary and I am uncertain of the function of this behavior. Some people will like and engage in deceitful behaviors in order to escape punishment or exaggerate their sense of self-importance. Some of the [f]ather's stories had qualities of these factors. However, some of the [f]ather's embellishments appeared to serve no function whatsoever. Also, it would be pretty easy to verify whether or not the [f]ather served in the army for 16 years and whether or not he served nine tours of duty in the Middle East. Similarly, I could have asked the [f]ather to show me the scars on his ankles attesting to his [report] that his feet were surgically reattached to his body. Thus, the [f]ather's behaviors are unusual and maladaptive to some degree. At the same time, lying is not necessarily a symptom of a mental illness.… Nevertheless, it is possible that the [f]ather possesses a [p]ersonality [d]isorder which is manifested in these particular behaviors. With this said, I did not obtain evidence to indicate that the [f]ather is exhibiting symptoms of a major mental disorder.… I suspect … there is more than meets the eye with the [f]ather. However, he did not identify any major difficulties and he does not appear to be motivated to make any major changes in his lifestyle. It may be beneficial to have him participate in drug urinalysis screening to rule out any potential that he is a drug user. However, I do not have any other clinical recommendations. I understand that these findings are a bit vague. However, the [f]ather is a bit vague in his presentation. Thus, no other specific recommendations are offered."
Supplemental Disposition Report-August 3, 2023
In addition to prior described and documented events, the report described the following. On July 12, 2023, SSW Ramirez spoke with father in person. Father indicated he had completed his parenting, child neglect, and failure to protect classes, and would provide his certificates of completion once he paid the class fees. Father said he had a cell phone currently in mother's possession, where he had access to $300,000 worth of Bitcoin he planned to sell to pay for the classes. SSW Ramirez asked whether he believed mother would return the phone, and father chuckled and said he hoped so since he was currently changing the brakes on mother's car and mother was using father's car.
SSW Ramirez stated there was an active restraining order requiring them to maintain a certain distance from one another, and father said they switched cars from a distance.
SSW Ramirez asked if father would be willing to drug test, and he declined, stating he had rights. SSW Ramirez stated that once the case entered disposition, he may be court ordered to test, to which father nodded. He explained that he had missed his previous visit due to food poisoning.
On July 18, 2023, SSW Ramirez received a text message from father stating he was concerned about N.P.'s placement. He said during a comfort call, N.P. was in a car with no air conditioning, with the windows down, and N.P. said he was getting beaten up. N.P. was subsequently removed from the caregiver on July 20, 2023. SSW Ramirez also told father that she was informed father would not be receiving credit for his classes until his fees were paid, and that father constantly promised to pay his fees but never followed through. Father indicated that mother and his brother would be helping him pay his fees.
Continued Disposition Hearing-October 16, 2023
On October 16, 2023, the juvenile court held its final disposition hearing. The court found the children do not fall within the Indian Child Welfare Act.
Father called SSW Lopez as a witness. SSW Lopez testified that the primary concerns the department had with father was his authenticity issues. However, SSW Lopez stated that the department did not investigate any of father's stories. SSW Lopez also stated the department was concerned about the children's behaviors, especially N.P. choking K.P., and that the children learned those behaviors from somewhere. Ultimately, SSW Lopez testified that the primary concern is that if the children were released to father, he may allow them to be exposed to mother. SSW Lopez stated the department wanted father to engage in his case plan before they would consider letting the children go with him-father had completed 12 of 26 weeks of his parenting and child neglect classes, and nine of 26 weeks of failure to protect. Father also had not enrolled in mental health counseling yet.
Father also testified. When questioned about his history, he stated he was 34 years old, he received his GED when he was 16 years old and then served 16 years in the Army. He received an honorable discharge in either 2021 or 2022. He also stated he received a four-year degree from MIT while serving. When asked about his charges for violating a court order, father stated the charges were going to be dropped because "they have no security footage to prove that I wasn't there."
When asked about the security cameras, he stated he put the cameras in the bathroom because mother "doesn't do anything private at all, just cleans" when he's not home. Then when he came home he put the cameras away and was not able to watch them because he was getting deployed out for the fire department. He testified he was deployed for about four months, but would come home from deployment and put the cameras back up because he was concerned about animals that were missing. He clarified that he was not deployed the entire time, and would be gone for the weekend, then home for a few days, then gone again. He stated he chose not to look at the videos because he wanted to spend time with his kids instead.
When asked whether he ever showed up when mother had visits with the children, father said he did. He stated he brought food because mother asked him to.
The juvenile court ruled as follows:
"[T]his is a very troubling case. This is the second time these children have come before the [c]ourt. We thought they would be safe with the parents before, and there are significant issues that have occurred since then.
"So the father's lying is concerning because it makes his credibility in question. So whatever he testifies to, I question because I tend not to believe what he says because he's been so untruthful about so many things.
"I would point out in the report, the original disposition report, he said he was self-employed as an electrical engineer. Now he says he's been employed by Smuckers for, I forget how many months, several months.
"The testimony that he did not check the videos when he was so concerned about [m]other hurting the cats for months is just unbelievable. And if it's believable, then it's even more worrisome because he's got concerns she's being harmful to animals, which I think we all understand is a risk factor in people caring for children, and yet he chooses not to look at the videos that he was so concerned he put the cameras in there or the phone in there to look.
"The doctor, I have great respect for Dr. Musacco. … And Dr. Musacco was flummoxed by the father, as am I. Why would one lie about these things that are so easy to verify. And I could have sworn that Ms. Scroggins had a copy of the MIT diploma that was shown not to be valid, but I'm not going to consider that because I'm not sure if my recollection is correct and it's not before me in this case.
"I'm concerned about the effect on these children. Both [counsel] have referenced [N.P.] talking about the video where Mom hit him, but that was "robot mom." It looked like his mother and it had a voice box to sound like her. Father built it because he likes Mom. And robot mom hit him with a remote and fly swatters and killed the cats because [f]ather showed it to me.
"So whatever maladaptive behavior is going on with [f]ather, it's been visited on the children to their great detriment. And I am-I do not have the ability to put the children back in his care, at this time. I would ordinarily say, he needs individual counseling to address these issues, but Dr. Musacco has said he doesn't know really what the counseling would address. So I'm inclined not to order that, but I honestly don't know how to fix this situation without individual counseling.
"I do think [f]ather needs domestic violence counseling, in light of the issues that are in the report about his-I mean there is certainly evidence, allegations, I believe evidence that he has taken the video or the text messages from [m]other and changed them. There is no question in my mind that that's domestic violence. There is Case Law on that. [¶] … [¶]
"I mean there's really no question. It is on video that she has harmed these cats and that she harmed [N.P.] And then [f]ather messes [with] [N.P.]'s head to make him think, well, it wasn't really [m]other. So I just don't see how anybody could fail to find by clear and convincing evidence there's a substantial risk of detriment to these children."
The juvenile court found there was clear and convincing evidence there was a substantial danger to the children's physical health, safety, protection or physical or emotional well-being, or there would be if physical custody were not removed from the parents and there were no reasonable means to protect the children's physical health without removal from the physical custody of the parents. The court further found both parents made minimal progress toward alleviating or mitigating the causes necessitating placement. As to father, the court did not believe he gained any insight or taken any responsibility for the situation the children were in. Father's request for placement was denied.
DISCUSSION
I. Substantial Evidence Supports the Court's Detention Order
Father argues the juvenile court erred when it detained the children. Father argues the department did not file any allegations against father and failed to make reasonable efforts to prevent the children's removal from his custody. We disagree.
A. Legal Standard
Section 319, subdivision (c)(1) requires a court to release a child from its custody unless a prima facie showing has been made that the child comes within section 300, the court finds that continuance in the parent's home is contrary to the child's welfare, and in relevant part, there is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there is no reasonable means by which the child's physical health may be protected without removing the child from the parent's physical custody. (§ 319, subd. (c)(1)(A).)
A child comes within section 300 when a child has suffered, or there is a substantial risk that the child will suffer serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian.
The department's evidentiary burden at the initial detention hearing is "light." (Johnny W. v. Superior Court (2017) 9 Cal.App.5th 559, 567.)" '[P]rima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. It may, however, be contradicted, and other evidence is always admissible for that purpose.' [Citation.] 'The words "prima facie" mean literally, "at first view," and a prima facie case is one which is received or continues until the contrary is shown and can be overthrown only by rebutting evidence adduced on the other side.'" (In re Raymond G. (1991) 230 Cal.App.3d 964, 972.)
" 'While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' [Citation.] Thus previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur." (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.)
"In reviewing the sufficiency of the evidence, our review requires that all reasonable inferences be given to support the findings and orders of the juvenile court and the record must be viewed in the light most favorable to those orders. [Citation.] Those findings and orders may not be disturbed if they are supported by substantial evidence. [Citations.] … 'Issues of fact and credibility are questions [of fact] for the trial court, not this court. [Citation.] "The rule is clear that the power of the appellate courts begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." [Citation.]'" (In re Samkirtana S. (1990) 222 Cal.App.3d 1475, 1487.)
B. Analysis
At the May 5, 2023 hearing, there was substantial evidence of disfunction and abuse before the juvenile court which detrimentally affected the children, sufficient to meet the department's prima facie burden as to father.
Mother was alleged to have killed between 10 and 16 cats over the span of six months and was caught on camera abusing two different cats and hitting N.P. with her hand and with an object on the head. Mother was also alleged to have sent disturbing text messages to father, threatening to kill herself and the children.
While the department did not file allegations against father, the concern that father would not protect the children from mother or keep the children away from mother gave rise to a prima facie case against father. And it was father's lack of credibility that compounded that concern.
Father had a history of failing to protect the children from mother's alleged abuse. In the 2020 dependency proceeding, father admitted to lying about domestic violence in order to get custody of the children. Additionally, there were allegations against mother of abusing N.P., who was seen with cuts and bruises on his body caused while in mother's care. However, despite knowing about this abuse and despite the children being detained from mother by court order, father nonetheless left the children in mother's care without any supervision.
This pattern of behavior continued in this case. Father became aware of animals disappearing between November and December 2022, and the family went through 16 pet cats. Father was concerned enough to put up a hidden camera at the end of December 2022, beginning of January 2023, but promptly forgot about it despite such a large number of animals going missing or dying in the house.
There was also evidence presented that father may have been aware of mother's abuse of N.P. Father told SSW Lopez that he saw a bruise on N.P.'s side, and when asked about it, N.P. had told him that" 'mommy did it.'" Father also told SSW Lopez that mother had made threats to kill him and/or the children prior to the cat incident. Finally, when SSW Mozier spoke with N.P., he stated that robot mom hits him and kills cats. When asked how he knew about the cats, N.P. said his father showed him the cat video. These events must have happened prior to mother leaving with the children in April. However, there were no facts presented that father acted on any of this information prior to April 16, 2023.
N.P. also made other concerning statements, such as father built robot mom and told robot mom to hurt him and K.P. N.P. also said that robot mom beats him with a belt and kicks him in the genitals, and father beats him with a belt or a fly swatter, and on N.P.'s sixth birthday, chased him around the house with a belt. Mother echoed these allegations, and stated that father hits N.P. with a fly swatter and a belt, is rough with him and cusses at him.
The statements by N.P. and mother that father directly, physically abuses N.P. are sufficient to state a prima facie case against father at this stage. Nonetheless, the juvenile court could reasonably infer from N.P.'s statements that father was aware of mother's abuse and that is why he built robot mom, or in other words, told N.P. that it was not his actual mother who was hitting him. The court's concern that father is telling N.P. things that are causing the child emotional harm is supported by substantial evidence and presents a prima facie case that section 300 is satisfied.
Father argues that the department did not make reasonable efforts to prevent the children's removal from his custody. "A reasonable efforts finding must be made based on the particular circumstances of a case." (In re Amy M. (1991) 232 Cal.App.3d 849, 856.) In Amy M., the children were removed from the mother when it was alleged they were molested by the father, and the mother knowingly violated a protective order prohibiting contact with the father. (Id. at p. 856.) The appellate court stated, "[w]e find it difficult to conceive what efforts could have been proffered to prevent or eliminate the necessity of removing the children from their home; Amy was clearly at risk of continuing abuse, and [the sibling] was at risk of abuse if his mother failed to protect him, which she was unwilling or unable to do." (Ibid.)
In this case and at this point in the proceedings, father stated he did not intend to reconcile with mother. However, he repeatedly indicated a willingness to" 'take [mother] back'" if she got help. Shortly before the detention hearing, father inquired about mother's well-being and commented that he hated to see her cry. He did not similarly inquire about how the children were doing, despite stating that the children were all that he cared about.
Much like in Amy M., father in this case continued to pursue mother who was alleged to be a danger to the children's physical and emotional well-being. It is unclear what reasonable efforts the department could conceive to prevent the children from harm, other than removal.
II. Substantial Evidence Supports the Juvenile Court's Jurisdiction and
Disposition Order
Father argues substantial evidence does not support the removal of the children. Appellant argues the court and the department relied on "concerns" and past conduct, not present evidence to find clear and convincing evidence supported removal. We disagree.
A. Legal Standard
The avowed goal of dependency law is to protect children who are physically, sexually or emotionally abused, neglected or exploited. (§ 300.) "The fundamental premise of dependency law is to serve the best interests of the dependent child." (In re Samuel G. (2009) 174 Cal.App.4th 502, 510.)
"In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by [s]ection 300, the court may limit the control to be exercised over the dependent child by any parent.…" (§ 361, subd. (a)(1).)
"If a court orders removal of a child pursuant to [s]ection 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of [s]ection 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).)
"A court's ruling under section 361.2, subdivision (a) that a child should not be placed with a noncustodial, nonoffending parent requires a finding of detriment by clear and convincing evidence. [Citation.] We review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the children would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)
B. Analysis
Father argues the juvenile court and the department relied on the perception of risk, rather than actual evidence of risk, and past conduct rather than risk of future harm to deny placement of the children with father. Father further argues that there was no evidence that he was a habitual liar, and exaggerations are not a basis for removal of children from a parent. Father cites In re Emily L. (2021) 73 Cal.App.5th 1 (Emily L.) for support.
The factual situation in Emily L., however, was unique to that case. In October 2019, a section 300 petition was filed on behalf of two minors-Emily L., 16 years old, and Andrew F., seven years old. (Emily L., supra, 73 Cal.App.5th at p. 4.) The petition alleged the mother abused Emily, and the father failed to protect. (Ibid.)
Emily was in turn described as aggressive, rebellious, did poorly in school, and did drugs. (Id. at pp. 9-10.) Following the filing of the petition and detention hearing, the mother moved out and the juvenile court ordered services for the parents and Emily. (Id. at p. 11.)
Andrew had been diagnosed with kidney cancer and passed away in June 2020. (Emily L., supra, 73 Cal.App.5th at p. 12.) Following Andrew's death, the mother and Emily stopped making themselves available for services, but Emily's behavior had changed "drastically" for the better. (Ibid.) At the jurisdiction and disposition hearing in December 2020, the juvenile court struck father from the petition but sustained allegations against the mother "because of the [m]other's lack of cooperation with the [d]epartment and I want to, even though the child turns 18 in four months … for the [m]other to avail herself of any of the services she can.…" (Id. at p. 13.)
The appellate court found substantial evidence did not support the jurisdictional finding of the juvenile court. (Emily L., supra, 73 Cal.App.5th at pp. 15-16.) The court found no confrontations had occurred with the mother in over a year, and no evidence was presented that violent altercations like the one that precipitated the section 300 petition in October 2019 would occur again given the change in family circumstances after Andrew's death. (Ibid.)
In sharp contrast, in this case the core concern is father's ability to keep the children safe from mother given the allegations against her, and father's ability to keep the children protected from what the juvenile court describes as father and mother's "toxic" relationship. And unlike in Emily L., father in this case has shown a consistent pattern of antagonizing, harassing or engaging with mother, demanding they get back together, as well as using and involving the children in his behavior. Father's actions are compounded by his exaggerations, excuses and outright lies, from which the juvenile court could reasonably conclude father's promises to keep the children safe, when in his care, were not credible.
Father's Contacts with Mother
On May 6, 2023, despite an active restraining order against him, father drove to mother's house and followed her car to a police station. When approached by the officers, father yelled" 'there is pc to arrest'" and stated that a dispatcher told him to follow mother and report her location so that the officers could arrest her. He was physically removed from his car and placed in a patrol car, all while refusing to accept that he had violated the restraining order.
Then, when questioned about the charges arising from this incident at the October 16, 2023 disposition hearing, father said the charges were going to be dropped because "they have no security footage to prove that I wasn't there." He then stated, under oath, "I read the police reports and I've also seen the security footage and it shows that it's just a figure, you can't tell who it is, you can't say it's me. You can't say it's anybody. You can't tell it's anybody, can't see anything. It's not even the car that I drive."
During the May 6, 2023 incident, mother showed officers approximately 100 text messages father sent her that day. The officer viewing the messages described them as threats and harassment if mother did not" 'fix'" their relationship and get back together. Father sent these messages, particularly those demanding mother get back together with him, knowing mother had allegations of abuse against the children and after stating that he would not allow mother around the children.
On May 10, 2023, father told SSW Ramirez that he was "officially done" with mother and would never get back with her. However, on May 15, 2023, mother called SSW Ramirez and stated father was texting her and had stolen her wallet out of her car. When mother was visiting with the children, father was seen driving by the location of the visit, and mother stated father tracked her cell phone. Father's completely false explanation of his behavior, at the October 16, 2023 disposition hearing, was that he showed up when mother had visits with her kids to bring food because mother asked him to.
On May 16 and 17, 2023, both mother and father claimed their phones were hacked and each of them fabricated text messages to make the other look bad. On May 19, 2023, mother told SSW Ramirez that father was still harassing her and still wanted to "get back" with her, telling her to drop her restraining order.
On May 19, 2023, father video called mother while father visited with the children, "because the children wanted to see her." Mother told SSW Ramirez father also asked mother to drive by the department "so the children could see her." These requests might be construed as innocuous if not for the context of this case. Here, the juvenile court could reasonably infer father was using the children to circumvent the restraining order and contact mother.
On July 12, 2023, father stated he was fixing mother's car and mother was in turn using his car. On July 18, 2023, father stated that mother was going to help pay the fees for his classes. At the October 16, 2023 disposition hearing, father testified he had "recent" contact with mother and had fixed her car on at least two occasions. As of the disposition hearing, father remained enmeshed with mother despite the allegations of abuse against mother toward the children.
Father's Failure to Protect the Children
On May 3, 2023, father stated that he discovered the videos of mother harming cats on April 16, 2023. He stated he put the camera in the bathroom around the end of December 2022, beginning of January 2023, and then forgot about them because he started volunteering on weekends.
In contrast, at the October 16, 2023, disposition hearing, father testified that he was concerned about the missing animals. So he would put the cameras up when he was home, then take them down when he would "ship off." When he returned, he would put them back up again to "see what [he] could catch." When asked why he did not choose to look through the cameras when he was home, father said he "chose to spend time with [his] kids instead of having to go through all those videos." From this testimony, the juvenile court could reasonably infer father was lying about forgetting about the videos, but rather chose not to follow up on his concerns about the dead and missing animals.
This inference is equally applicable to the videos of mother hitting N.P. Father stated he had seen bruises on N.P. and N.P. said" 'mommy did it.'" Father stated mother had threatened to kill herself and/or the children previously, and there was a prior dependency case where N.P. was seen with lacerations and bruises on his arms, legs and body after spending time in his mother's care. But father nonetheless described mother as a" 'good mom'" and there was no indication that father acted on any of his concerns until April 16, 2023.
Likewise, the juvenile court could reasonably infer father was aware of ongoing abuse and allowed it to continue, given N.P.'s statements to the social workers. N.P. stated that father made robot mom to hurt him and K.P. and to kill cats. Mother believed robot mom was something father taught N.P. As previously discussed, the court could reasonably infer from N.P.'s statements that father was aware of mother's abuse and told N.P. about robot mom to make N.P. believe it was not his actual mother who was hitting him.
N.P. also stated that father showed him the cat videos, and that was how he knew "robot mom killed the cats." This would mean father intentionally exposed N.P. to mother's animal abuse. On May 4, 2023, N.P. said he was afraid of going to the bathroom alone because father told him "El Cucuy" would come and take him and K.P. away from their mom. As the juvenile court described, these are maladaptive behaviors visited on the children by father, to their great detriment.
Even after the children were removed from both parents, father continued to involved N.P. in his feud with mother. During his visit with the children on May 8, 2023, father told N.P. that mother was in jail for breaking into his home and stealing from him, and that the children could not visit her.
Unlike in Emily L., there was no evidence presented that there were any significant changes in father's circumstances between the initial section 300 petition and the October 16, 2023 disposition hearing, that might render his behavior sufficiently remote and unlikely to be repeated.
Reviewing the record as a whole we find substantial evidence supports the juvenile court's finding that clear and convincing evidence shows placement of the children with father would be detrimental to their safety, protection, or physical or emotional well-being. (§ 361.2, subd. (a).)
DISPOSITION
The orders are affirmed.
[*] Before Detjen, Acting P. J., Meehan, J. and DeSantos, J.