Filed 1/31/14 In re D.S. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re D.S., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E058182

         Plaintiff and Respondent,                                       (Super.Ct.No. J247096)

v.                                                                       OPINION

M.J.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall, Judge. Affirmed.

         Liana Serobian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County

Counsel, for Plaintiff and Respondent.

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                                             I

                                   INTRODUCTION

      Father, M.J., appeals, challenging the juvenile court’s jurisdictional, dispositional,

and visitation orders involving his son, D.S. Father contends the dependency pleadings

were defective and substantial evidence did not support the court’s findings and orders.

We disagree and affirm the orders of the juvenile court.

                                             II

                  FACTUAL AND PROCEDURAL BACKGROUND

      Father was born in 1973 and lost custody of his first child who was born in 1995.

Mother was born in 1985. D.S. was born in May 2002 when mother was 16 years old.

A. 2003 Detention

      D.S. suffered a spiral fracture of his left femur when he was 10 months old.

Father said he had accidentally “leaned” on D.S. D.S. was eventually returned to

mother’s care. In 2012, mother claimed father had actually broken D.S.’s leg.

B. 2012 Detention

      CFS1 filed the original dependency petition in December 2012. The petition

alleged serious physical harm, failure to protect, and serious emotional damage (Welf. &




      1   Children and Family Services, County of San Bernardino.




                                             2
Inst. Code, § 300, subds. (a), (b), and (c)),2 based on mother, L.M., intentionally sitting

on D.S. and fracturing two vertebrae; the stepfather, M.M., injuring D.S. and causing a

nosebleed; mother’s alcohol abuse; mother and M.M.’s domestic violence; and the

parents’ ongoing custody dispute. D.S. had two younger half-siblings, A.M. and C.M.

       CFS recommended family reunification services for all three children. After a

contested three-day detention hearing, D.S. and his younger sisters were ordered detained

in separate foster homes. The court ordered the parents to have supervised visitation with

D.S.

C. Jurisdiction and Disposition

       The jurisdiction and disposition report included medical information that D.S. had

compression fractures and abnormalities in the T4 and T10 vertebrae. The medical

professionals believed that at least one fracture was acute and could have happened by

mother forcefully sitting on the child’s back. However, D.S. may also have suffered

earlier injuries that were aggravated by additional injuries in November 2012.

       During a CFS forensic interview on November 30, 2012, D.S. reported that his

mother “sat on his back and jumped on him causing him pain” and his stepfather gave

him a bloody nose. D.S. disclosed that mother and M.M. used alcohol while driving with

the children.


       2  All further statutory references are to the Welfare and Institutions Code unless
stated otherwise.



                                              3
      CFS interviewed father who insisted he had cooperated with family law custody

orders involving D.S. Mother adamantly denied injuring D.S. or knowing he was injured.

However, she admitted he complained of back pain. Mother thought D.S. could have

been hurt when his younger sister, A.C., jumped on his back in a moment of excitement.

A.C. offered the same explanation. Mother was intending to seek medical treatment for

D.S. after December 1 when he was eligible for Medi-Cal. Mother also denied that M.M.

had caused D.S. to have a bloody nose and blamed D.S. for “purposely ‘picking his own

nose.’” Mother denied abusing drugs or alcohol. She was nursing her younger daughter

and had a negative drug test. Mother also denied domestic violence between her and

M.M. But, on December 4, 2012, mother told CFS she was going to live with her mother

because she was afraid of M.M. Mother agreed there had been ongoing custody disputes

about D.S. with father.

      The parents had been involved in a contentious custody dispute since 2006. They

had participated in 10 mediations in six years and an unsuccessful mediation in

November 2012. Mother participated in supervised visitation with D.S. between May

2012 and October 2012, which was characterized by ongoing strife between the parents

and erratic behavior by D.S. In family court, mother had regained custody of D.S. on

October 25, 2012; the minute order stated that “Court admonishes Petitioner that if 730

evaluation is not [complete] the Court will change custody.” The family court set

November 29, 2012, as the hearing date on the issues of custody and visitation.




                                            4
       An Evidence Code section 730 evaluation (“730 evaluation”) was ordered in

family court and prepared by Dr. Robert Suiter for the hearing on November 29, 2012.

The evaluation had been initiated in 2009 but suspended by mother who agreed by

stipulation that father could have primary physical custody of D.S. Mother then moved

to Hawaii in July 2010 and did not see D.S. for about 15 or 18 months. Supervised visits

resumed in January 2012. At the time of the 730 evaluation in October 2012, D.S. was

10 years old and in the fifth grade. He had good grades and was polite. D.S. stated his

father took excellent care of him and helped him with his homework, soccer, and Tai

Kwon Do classes. D.S. claimed that, when he had lived with his mother, she had

spanked him with a belt and hit him with her fist. His stepfather also hit him with a belt

and restrained him on the floor. D.S. was extremely negative about his mother and

stepfather. Dr. Suiter was critical of both parents but concluded father should continue to

have custody and mother’s visitation should be increased.

       On January 4, 2013, D.S. disclosed to CFS that he had lied about his mother and

stepfather injuring him. During the pretrial settlement conference, in an in-chambers

hearing, D.S told the juvenile court that his mother did not sit on him nor did his

stepfather intentionally bump his nose. Instead, his four-year-old sister had jumped up

and down and rammed him, hurting his back, and he had also hurt his back playing

soccer. His father had directed him to lie about what had happened. D.S. was fearful of

returning to live with his father although his stepfather had struck him with a belt and his

mother hit him with her hand.

                                             5
       At the jurisdictional and dispositional hearing on February 28, 2013, the court

dismissed all allegations of physical abuse, domestic violence, and alcohol abuse against

mother and stepfather. The court sustained the allegation under section 300, subdivision

(j), that the girls were at risk of harm due to the unstable home situation as a result of the

custody battle between mother and father. The court returned the girls to mother and

stepfather under a plan of family maintenance. The court declared D.S. a dependent of

the court under section 300, subdivisions (b) and (c), finding true allegations that D.S. is

the subject of an ongoing custody dispute affecting his emotional well-being. The court

observed D.S. was being “torn apart” by his parents. The court then removed D.S. from

parental custody, ordered supervised weekly visits with father if D.S. was willing, and

reunification services with father to include conjoint counseling when appropriate. D.S.

was placed in the home of the maternal grandmother.

                                              III

         SUFFICIENCY OF PLEADINGS AND SUBSTANTIAL EVIDENCE

                                   FOR JURISDICTION

       Father’s first attorney argued below that the allegation under section 300,

subdivision (b), that he failed to comply with family law custody orders was too vague

and was not supported by substantial evidence. As to allegations under section 300,

subdivision (c), that the parents’ custody dispute had affected D.S.’s emotional well-

being, father argued the allegation did not plead and the evidence did not prove the type

of emotional damage the statute required. However, subsequently, father’s second

                                               6
attorney conceded that D.S. came under the court’s jurisdiction under section 300,

subdivision (c). Ultimately, after father had executed a knowing waiver of his right to

trial on the petition, the court found true the subdivision (c)-8 allegation and the

subdivision (b)-9 allegation as amended: “The minor . . . has been the subject of an

ongoing custody dispute between the mother . . . and the father . . . which is so pervasive

it creates instability in the home.” Because of his attorney’s concession and father’s

execution of the trial waiver, we conclude father’s challenge to the facial sufficiency of

the dependency petition was forfeited on appeal by the failure to object. (In re

Christopher C. (2010) 182 Cal.App.4th 73, 82-83.)

       Even if there was no forfeiture, however, we would still find substantial evidence

supports the juvenile court’s jurisdictional findings. (In re Veronica G. (2007) 157

Cal.App.4th 179, 185.) Section 300, subdivision (c), permits the assertion of jurisdiction

over a minor where “[t]he child is suffering serious emotional damage, or is at substantial

risk of suffering serious emotional damage, evidenced by severe anxiety, depression,

withdrawal, or untoward aggressive behavior toward self or others, as a result of the

conduct of the parent . . . .” (§ 300, subd. (c).) To prove that a minor comes within this

statutory definition of a dependent child, CFS bears the burden of establishing the

following three elements: “(1) serious emotional damage as evidenced by severe anxiety,

depression, withdrawal or untoward aggressive behavior or a substantial risk of severe

emotional harm if jurisdiction is not assumed; (2) offending parental conduct; and (3)

causation.” (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.)

                                              7
       The court found true, under counts c-7 and c-8, the allegations that the parents’

custody dispute had “placed [D.S.] in the center of their conflict and affects his emotional

well-being.” Section 300, subdivision (c), specifically delineates “the type of impairment

to the child’s emotional functioning which will support intervention.” (In re Alexander K.

(1993) 14 Cal.App.4th 549, 559.) Father contends there is no substantial evidence D.S.

suffered “serious emotional damage” because the record lacks evidence of behavior that

meets the statutory definition of “severe anxiety, depression, withdrawal, or untoward

aggressive behavior toward self or others.” (In re Brison C., supra, 81 Cal.App.4th at pp.

1379-1380.) Father contends the child’s anxiety about returning to a parent does not

necessarily support dependency jurisdiction. (See id. at p. 1380.) Father asserts there is a

significant emotional cost to all children whose parents divorce but that section 300,

subdivision (c), is not intended to protect all children suffering the emotional

consequences of divorce and D.S.’s emotional problems are not any greater than other

children whose parents disagree about custody.

       Having reviewed the record, we disagree with father’s minimization of the effects

of his parents’ divorce on D.S. D.S. demonstrated terror and fear toward his father and

once erupted in a rage against his mother, causing him to be “dripping wet from sweating

and his face . . . beet red.” The visitation monitor expressed his opinion that D.S. was

being manipulated by an adult. D.S. showed signs of trauma, distress, and psychological

disturbance. The court and the attorneys all acknowledged that D.S. was suffering. As

the court described it, D.S. was being “torn apart.”

                                              8
         Dependency jurisdiction was proper under section 300, subdivision (c), because of

the damage to D.S.’s emotional well-being. Therefore, we do not need to review the

additional ground for jurisdiction under section 300, subdivision (b). (D.M. v. Superior

Court (2009) 173 Cal.App.4th 1117, 1127.)

                                              IV

                      SUBSTANTIAL EVIDENCE FOR REMOVAL

         On February 28, 2013, the court ordered D.S. removed from both parents and

placed him with the maternal grandmother. Father was granted supervised visitation.

         “The governing statute, section 361, subdivision (c), is clear and specific: Even

though children may be dependents of the juvenile court, they shall not be removed from

the home in which they are residing at the time of the petition unless there is clear and

convincing evidence of a substantial danger to the child’s physical health, safety,

protection, or physical or emotional well-being and there are no ‘reasonable means’ by

which the child can be protected without removal. [Citation.] The statute embodies ‘an

effort to shift the emphasis of the child dependency laws to maintaining children in their

natural parent’s homes where it was safe to do so.’ [Citations.]” (In re Jasmine G.

(2000) 82 Cal.App.4th 282, 288.) As an appellate court, we review the record in the light

most favorable to the juvenile court’s order. (In re S.A. (2010) 182 Cal.App.4th 1128,

1140.)

         Father argues that he, not mother, was the custodial parent in November 2012

when D.S. was detained. However, that issue is not relevant because the court removed

                                              9
D.S. from both parents at the dispositional hearing on February 28, 2013. Even if mother

was not the custodial parent, we still agree the juvenile court properly removed D.S. from

the parents based on clear and convincing evidence of a substantial danger to his physical

health, safety, protection, or physical or emotional well-being and there being no

reasonable means to protect him.

       Father relies on In re Basilio T. (1992) 4 Cal.App.4th 155, 171-172, to argue this

is not an extreme case of parental abuse or neglect and D.S. “could have been maintained

in his father’s custody under the court’s and the Department’s supervision, while he

participated in conjoint counseling with both his parents and parents participated in co-

parent counseling to achieve a healthy relationship for [D.S.’s] sake. The juvenile court

failed to select this viable and less drastic alternative than removal from father’s

custody.” Father focuses on the faults of mother and M.M. without seeming to recognize

D.S. was removed from mother as well.

       In any case, father refused to participate in counseling and was generally resistant

to participating in reunification services. As discussed above, D.S. was at risk of harm

from both parents and emotional harm from a father who was coaching and manipulating

him to make false accusations against mother. The juvenile court’s dispositional order

removing D.S. from both his parents was fully supported by the evidence.




                                             10
                                                V

                                         VISITATION

       At the dispositional hearing on February 28, 2013, the court granted father

minimum supervised visitation of one hour per week subject to liberalization of

frequency and duration. (§ 362.1, subd. (a); In re Christopher H. (1996) 50 Cal.App.4th

1001, 1008-1009.) The language of the governing statute provides in relevant part: “In

order to maintain ties between the parent or guardian and any siblings and the child, and

to provide information relevant to deciding if, and when, to return a child to the custody

of his or her parent or guardian, . . . : [¶] (1)(A) . . . Visitation shall be as frequent as

possible, consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A).)

Although the court said D.S. would never be forced to visit, a child may not be allowed to

control whether visitation occurs. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505.)

In January 2013, D.S. expressed ambivalence about visiting with father.

       Father maintains the court made an improper delegation of authority to D.S. and

CFS to determine whether any visits would occur at all. (In re Hunter S., supra, 142

Cal.App.4th at p. 1505.) We disagree the court could make an order compelling D.S. to

visit father and father cites no authority to the contrary.

       We also reject father’s contention that the juvenile court abused its discretion in

denying father’s request for D.S. to testify at the dispositional hearing as to the issue of

visitation. It lies “within the juvenile court’s discretion to exclude the testimony of a

child in order to avoid psychological harm to the child, even though that testimony is

                                               11
relevant, the child is competent to testify, and the child is both practically and legally

‘available’ to testify.” (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1088.) “[T]he

juvenile court judge in a proper case may refuse to require the attendance and testimony

of the child who is the subject of the litigation. This power derives, we believe, from a

recognition of the overriding objective of the dependency hearing—to preserve and

promote the best interests of the child. It would be a perversion of the procedure to

impose upon it a requirement that the child’s testimony always be presented, regardless

of the trauma resulting to the child therefrom, and regardless of the necessity of such

testimony in the resolution of the issues before the court. . . . Where, however, the child’s

desires and wishes can be directly presented without live testimony, where the issues to

be resolved would not be materially affected by the child’s testimony, and where it is

shown that the child would be psychologically damaged by being required to testify, we

hold the juvenile court judge has the power to exclude such testimony.” (Id. at p. 1089.)

In this case, the record shows the D.S. was willing to have supervised visits—which is

exactly what the court ordered—meaning there was no need for his testimony and no

abuse of discretion in denying father’s request.

       Finally, we reject father’s argument that, during the pretrial settlement conference

on January 4, 2013, the court made comments that illustrated its misunderstanding of the

burdens of proof for jurisdiction and disposition and violated father’s rights of

confrontation and due process by not ordering unsupervised visitation. Instead, we

conclude the court made the indefensible observation that father would receive

                                              12
reunification services when it made the jurisdictional and dispositional orders.

Furthermore, unless father could make a relevant offer of proof, the court would order

supervised visitation based on the evidence before it. Father never offered the court any

reason to make different orders than those being contemplated. Therefore, he cannot

argue on appeal his rights of confrontation and due process were violated.

                                              VI

                                      CONCLUSION

       The juvenile court properly sustained the dependency petition. Substantial

evidence supports the juvenile court’s jurisdictional, dispositional, and visitation orders.

We affirm the orders of the juvenile court.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 CODRINGTON
                                                                                               J.

We concur:


RAMIREZ
                        P. J.


KING
                           J.




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