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In Re L.B., A Person Coming Under the Juvenile Court Law. v. David B

May 21, 2012


(Super. Ct. No. 11JD5154)

The opinion of the court was delivered by: Butz , J.

In re L.B. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

David B., father of the minor, appeals from the judgment of disposition in the juvenile court. (Welf. & Inst. Code, §§ 358, 395.)*fn1 Father contends the court abused its discretion in refusing to permit him to present evidence at the dispositional hearing and that the order for shared custody of the minor was not supported by substantial evidence. We shall affirm.


Calaveras Works and Human Services Agency (CWHSA) filed a petition in February 2011 alleging seven-year-old L.B. suffered severe emotional damage due to the conduct of both parents over several years. At the initial hearing, the court referred the minor to therapy, ordered the parents not to engage in corporal punishment or questioning of the minor and not to disparage the other parent in the minor's presence.

The jurisdiction report described a history of mutual domestic violence between the parents and the mother's physical abuse of a niece, which resulted in removal of the niece and the minor. The parents put the minor in the middle of their ongoing conflicts and he remained at risk of serious emotional damage as shown by his anxious, withdrawn behavior and unprovoked aggression.

The mother waived her rights and submitted on the social worker's report. Father did not contest that the minor had suffered severe emotional damage, but filed a declaration of submission and explanations in which he detailed what he contended were inaccuracies in the jurisdiction report that affected the question of fault. At the jurisdictional hearing, counsel explained to father that, since the mother submitted on the petition, fault was no longer an issue and the witnesses father wanted to call to dispute the accuracy of the facts of specific historical events or to assess fault were not relevant. Father was assured he would be able to call witnesses at the dispositional hearing when placement was at issue. With that assurance, father also waived his rights and submitted on the social worker's report and the document he previously filed. The court sustained the petition, finding the minor came within the provisions of section 300, subdivision (c).

The report for the dispositional hearing recommended continuing the current shared custody arrangement, with some modifications, and offering family maintenance services to both parents. The CWHSA found there was a history of violence by both parents directed toward each other and minors in the mother's care as well as various accusations and untrue statements about each other's conduct. In 2009, the minor and the mother's niece, who was also her ward, were placed in protective custody due to the mother's substantiated physical abuse of the niece. The minor was later returned to the mother because he was at a lower risk for physical abuse. After this incident, both parents increased pressure on the minor by questioning him, encouraging him not to disclose information and engaging in heated exchanges in the minor's presence.

The disposition report further stated that each parent acknowledged the minor was at risk of severe emotional harm and each could clearly identify the other's issues but were unable to evaluate their own contributions to the minor's ongoing emotional damage or change their behavior to decrease the stress they placed on him. The social worker considered the minor to be in an impossible situation although the minor said he felt safe in both homes. The social worker observed that each parent displayed a rigid mindset and needed to focus on their own contribution to the minor's problems and not the other parent's issues. The constant and extensive questioning of the minor about the other parent and about perceived abuse was not helpful and actually harmed him. The minor's therapist said the repeated questioning of the minor had to stop and both parents needed therapy.

According to the report, the CWHSA investigation found that most of the allegations of physical abuse of the minor were unfounded or inconclusive.*fn2 The report emphasized that the role of CWHSA at disposition was not to parcel out blame to each parent for the minor's emotional suffering, but to protect the minor from emotional abuse by both parents by offering services. The team evaluating the case recommended reducing the exchanges of the minor by modifying the shared custody arrangement so that only one custody exchange a week was necessary. Further, the minor was to have liberal telephone contact with the non-custodial parent at his discretion. The case plan included parenting and counseling for both parents and continued counseling for the minor.

An addendum stated that the parents were given the proposed reunification plan. The mother had participated in parenting classes but needed additional instruction. Father continued to violate prior court orders by discussing the case with the minor and admitted to questioning the minor, who, he said, was drilled by the mother to lie and arrived at the custody exchange scared and shaking. Father did not think his own behavior contributed to the minor's anxiety. The social worker observed that, when the minor was questioned in father's presence, he checked with father before answering but, if questioned without father present, freely stated that things were going well at the mother's home and he had no concerns with her. The minor's therapist reported she had to admonish father about discussing the case in front of the minor. The social worker's assessment was that the minor continued to show anxiety over the parents' fighting. Further, while both were continuing behaviors that were emotionally damaging to the minor, father's behavior was most troubling because he perseverated about past events and affixed blame rather than trying to address the current situation.

Father filed a position statement in which he objected to various parts of the social worker's report and addendum, including the recommended changes in custody and telephone contact, provided alternative explanations of past events and clarified information about ...

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