Opinion
A147489
04-14-2020
IN RE the MARRIAGE OF K.R. and A.P. K.R., Respondent, v. A.P., Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. VF07356209)
Appellant, A.P. (Father), appeals from a judgment granting his former wife, respondent, K.R. (Mother), sole legal and physical custody of their two daughters. Mother has not filed a respondent's brief. We affirm.
Mother's requests for judicial notice are denied.
I. BACKGROUND
Mother and Father married in 1999. They have two daughters, S. born in 2003 and K. born in 2005. The marriage was characterized by ongoing conflict, with each party alleging the other committed acts of domestic violence. Since June 2008, the parties have been embroiled in a hotly contested custody dispute over their children who are now approximately 17 years old and 15 years old.
Allegations of Sexual Abuse
In November 2009, child protective services (CPS) received a call from an individual reporting that Father had been sexually abusing S. and K. Mother told the reporting party that the girls complained about Father pinching their private areas and taking baths with them. Based on these allegations, a CPS social worker met with Mother and the children on November 23. S. told the social worker that Father took baths with her and K. during visits at his house. Father would "always pinch their bottoms[,]" which hurt and made them cry. Father "did not pinch their vaginas, only their bottoms." Father also told S. and K. to "touch his privates but they didn't want to because 'it's disgusting.' "
During the interview, the social worker noted K. appeared to understand the questions, but at times she appeared to have difficulty providing clear answers. K. told the social worker she was afraid of Father because he would hit her and S. Father was "always mad" at Mother, and K. did not like this. When at his house, Father would get in the bathtub with K. and she did not like that, either.
Mother reported seeing small bruises from time to time on her daughters' bottoms, but because the girls never said Father caused them, she was not concerned. Mother, however, was concerned that K. kept coming home from visits with Father with severe rashes in her vaginal area. Mother took K. to the pediatrician, who determined K. had yeast and urinary tract infections. Mother felt no one believed her because Father was "very manipulative . . . and t[old] the police that she is mentally ill."
Ultimately, the social worker closed the November 2009 referral without further CPS action because, at that time, the children were not in any imminent danger. Father had not seen the children since July 2009, and Mother was about to leave on a month-long trip with the children.
On December 30, 2009, Mother called the CPS social worker, and told her that Father had obtained an ex parte order granting him visitation with the children that afternoon. The social worker immediately reopened the case and spoke with Father. Father agreed not see the children until at least the next scheduled family court hearing set for January 13, 2010. Father spoke with the social worker for more than 30 minutes, "sharing a lot of information about [Mother] and his concerns that she is mentally ill and putting things in the children's heads." Father "stressed that his daughters love him and that [Mother] is 'dangerous', 'evil-minded', 'manipulative,' 'criminally-minded' and 'sensational.'"
Police Investigation
In February 2010, law enforcement officials arranged for multidisciplinary interviews (MDI) with the children. S. was nearly 7 years old when she was interviewed. The assigned detective opined S. provided a "solid interview." The detective shared information about the interview with the social worker, and the information S. provided in the MDI was similar to what she had told the social worker. S. reported that Father "gets in the bathtub with her and her sister, that he has touched [S.'s] bottom and vagina, and that he has asked that [S.] touch his privates." The forensic interviewer found S. to be a reliable witness.
On February 9, 2010, the social worker issued a report finding the allegations of Father's sexual abuse of S. were substantiated. At the time, the MDI for four-year old K. had not yet occurred. The social worker found the sexual abuse allegations regarding K. were inconclusive based on her November 2009 interview of K.
It was later reported that, given K.'s young age at the time of the abuse and at the time of the MDI, it was unlikely she could clearly recount the events. In the MDI, K. made internally contradictory statements. It was possible K. was remembering things her sister had told her.
Court-Ordered Visitation and Appointment of Child Custody Evaluator
On February 19, 2010, the court ordered therapeutic or supervised visitation pending the resolution of the sexual abuse charges. It is unclear from the record if any visits ever occurred. The criminal charges against Father were dismissed on May 26, 2010.
On October 12, 2010, the court ordered reintroduction visitation to begin. The court appointed two reintroduction therapists to facilitate the visitation, but the reintroduction therapy did not begin and never occurred. The parties disputed the reasons why the reintroduction therapy with the appointed therapists did not occur.
In March, 2011, the parties stipulated to the appointment of a replacement reintroduction therapist. However, reintroduction therapy did not commence after the change in therapists.
Appointment of Child Custody Evaluator
On November 16, 2010, the court appointed a child custody evaluator pursuant to Family Code, section 3111 and Evidence Code section 730. The court directed the evaluator to prepare a full custody evaluation. The court ordered Mother and Father to cooperate with the evaluator. The court further ordered Father to pay for the evaluation and related examinations. Evaluator's Interim Report
On July 6, 2011, the evaluator submitted an interim report. The interim report was provided due to the pending reintroduction counselling between Father and the children, and Mother's and Father's lack of cooperation. The evaluator reported S.'s teacher called CPS in Fall 2009 because she suspected S. had been sexually abused. After summarizing the evidence—including the MDIs with both children, as well as his interviews with the social worker, and children's current and former treating therapists—the evaluator opined reintroduction counselling "would be harmful at th[at] time, if, as has been alleged, Father abused the children . . . ." S.'s statements in the MDI provided a "strong basis to suspect that Father sexually and physically abused her and sexually abused K[.] The reports of their current and former therapists are consistent with this conclusion." The evaluator recognized that his interim recommendations were "by definition" made "before all relevant information ha[d] been gathered[.]" They were made " 'without prejudice[,]'" and "final conclusions and recommendations . . . may be similar to, or depart fundamentally from" the interim recommendations.
The evaluator described the parties' lack of cooperation. From the beginning of the process, Mother was difficult to schedule for appointments, and she was now refusing to make further appointments until the evaluator gave her copies of confidential documents he received from Father. The evaluation was stalled because the retainer had been nearly exhausted and Father had not indicated when additional funding would be forthcoming. "Much information remain[ed] to be gathered[,]" including interviews of the children. The evaluator also needed further interviews with Mother and Father. The evaluator had not received the CPS reports and had not yet reviewed some of Father's documents. The evaluator concluded: "Although there is no apparent way that additional information, even recantation by the children could refute the indications cited above of sexual and physical abuse, conclusions remain uncertain until all relevant information has been reviewed. Moreover, interviews of the children might reveal some positive feelings about Father, which would be a consideration in favor of contact with him in a therapeutic setting (though not a sufficiently strong consideration to outweigh those discussed above)."
Interim Court Orders and Efforts to Secure Additional Retainer
On July 8, 2011, Mother moved to suspend the reintroduction therapy. Following a hearing, the trial court suspended the therapy and ordered Father to pay the evaluator $3,000 to complete the evaluation. Father failed to do so. With the evaluation stalled for lack of payment, on August 11, 2011, the evaluator again requested the court to order Father to advance the $3,000 retainer. The court granted the order, but Father still failed to pay.
In September 2011, the evaluator notified the parties that he would be refunding the remaining balance of the retainer because he neither heard from them nor received payment. The evaluator sent a check to Father, but it was never deposited.
On October 18, 2011, Father moved to strike the interim report. Although the court agreed an interim report was "unusual," the evaluator had reached some preliminary conclusions, which the court found necessary as the facts of the case were "not typical." In light of Father's concerns about the evaluator's neutrality, the court indicated it would entertain the appointment of a new evaluator should Father file a motion or get a stipulation. Nevertheless, the interim orders would remain in effect.
On July 2, 2012, after receiving no further communication from the parties, the evaluator notified Mother and Father that he had to either return or shred the documents in his file. Four months later, the court ordered that $5,000 from a community property account be disbursed to replenish the retainer. Father paid the $5,000 on November 19, 2012, but refused to sign a new fee agreement that provided the evaluator an increased hourly rate.
In February 2013, the evaluator sought an order directing Father to sign the new fee agreement. Several months later, the court denied the evaluator's request and announced that completion of the evaluation was no longer a priority. Originally, the court's highest priority had been the completion of the evaluation. However, "because the current orders had been in effect for such a lengthy period of time and because [Father] had not taken advantage of the options he had to establish to the evaluator that the allegations were false, or complete that evaluation and retain an expert to discredit the work of [the evaluator], the court could infer that there was no benefit to making any further orders" regarding the completion of the evaluation. The evaluator's interim recommendations became the final recommendations and the evaluation was deemed complete. For reasons not disclosed in the record, this October 2013 order was not served on the evaluator.
On May 14, 2014, Father sought a modification of the existing temporary custody orders. He wanted sole legal and physical custody of the children. Father's request was based on Family Code, section 3044, following the issuance of a restraining order against Mother in a separate case. Mother opposed the motion and sought a final order granting her sole legal and physical custody of the children. The trial court consolidated the motions for trial and decision.
In September 2014, the evaluator, who was unaware of the October 2013 order, notified the parties he would work under the terms of prior fee agreement and provide what limited services were possible with the remaining retainer.
Evaluator's Final Report
On October 27, 2014, the evaluator filed his final report with the court. The evaluator provided a detailed account of the obstacles in attempting to render his evaluation, including the parties' repeated failure to cooperate, as well as Father's failure to pay the retainer despite several court orders. In light of these constraints, the evaluator was unable to successfully complete the evaluation. Nevertheless, to the extent possible, the evaluator addressed the allegations of possible sexual abuse by Father; physical abuse and neglect by Father; and physical abuse, neglect, and alienation by Mother.
The evaluator summarized five CPS reports he had reviewed. He also summarized his telephone interviews of six collateral witnesses: the children's former therapist, the MDI interviewer, S.'s second grade teacher, K's kindergarten teacher, the children's current therapist, and the children's former health care provider.
The evaluator concluded S.'s MDI provided a "strong reason" to believe that Father sexually abused both S. and K., and physically abused S. on at least two occasions. But it was "impossible" for the evaluator to determine whether Mother's reports that he fed the children only water and ice were accurate. The CPS report provided no background information regarding allegations of neglect and physical abuse by Mother, and the referral was closed as unfounded. The claim that domestic violence by the parties occurred in the presence of the children was likely given the fact that both parties had been arrested one or more times on domestic violence charges.
Finally, the allegations of alienation and/or knowingly creating false suspicion of abuse by Mother was corroborated to the extent that Mother had "exaggerated or fabricated" reports of Father's conduct on at least two occasions. In an August 2008 incident, Mother accused Father of extreme violence, but police found nothing at the scene to indicate a violent struggle had occurred. Moreover, the only observable injuries were those found on Father. Then, in a July 2009 incident, Mother said Father " 'beat S[.] up[.]'" But the only injuries to S. were two small sores in her mouth, which the treating physician concluded did not indicate abuse. The evaluator determined Mother had exaggerated when she made this allegation. Given this limited information, it was impossible for the evaluator to rule out or assess the likelihood that Mother engaged in alienation and/or knowingly created a false suspicion of abuse.
The evaluator recommended further evaluation depending on the trial court's finding. He explained: "Had the present evaluation continued, further data-gathering would have included additional interviews of both parties, psychological testing of Mother, possible additional testing of Father, observation of the children with Mother, interview of collaterals who had observed the children with Father if available, individual interviews of each child, and interviews of collaterals who might have information regarding the parties' allegations about the other." Finally, should further evaluation be ordered, a new evaluator should be appointed. The evaluator concluded "Father's pronounced distrust of this evaluator appears to be an insurmountable obstacle."
An eight-day custody trial began in February 2015. Upon request and with the agreement of the parties, the trial court reviewed the MDI videos. The trial court also received documentary evidence and heard from a number of witnesses, including the evaluator, the children's current therapist, the children's teachers, and Father's expert witness. Following cross-examination of the evaluator, Father unsuccessfully moved to strike the evaluation.
The trial court filed a tentative decision in July 2015, and after considering objections from Father, filed a statement of decision in August. The court determined Father's refusals had delayed the evaluation for years. "Although [Father] had the most to gain by completion of the evaluation, namely visitation with his daughters, he continually failed to take reasonable steps to facilitate the progression of the evaluation. The inference that he knew the probable result of the investigation into the allegations of his abuse of the minors is inescapable."
The court granted sole legal and sole physical custody of both children to Mother. The court ordered Father to successfully complete a sexual offender treatment program before the court would consider reconciliation counseling or any other contact between Father and the children.
In January 2016, the court entered judgment, finding that although Mother had committed domestic violence against Father, she had rebutted the presumption of Family Code, section 3044 and awarding her custody was in the children's best interest.
Father appealed.
II. DISCUSSION
In child custody and visitation determinations, the overarching concern is the best interest of the child. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).) Factors the court must consider include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents. (Fam. Code, § 3011; Montenegro, supra, at p. 255.)
We review custody and visitation orders under the deferential abuse of discretion test. (Montenegro, supra, 26 Cal.4th at p. 255.) The test is not whether we would have made the same order or whether the trial court could have reasonably made some other order, but "whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) We do not reweigh conflicting evidence or redecide findings. (In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513 (Birnbaum).)
Father contends the trial court judgment must be reversed because the child custody evaluation was flawed and biased, and the trial court relied on inadmissible hearsay evidence. Father has failed to demonstrate reversible error. A. The Child Custody Evaluation Was Not Inadmissible
"Because 'the results of an independent evaluation generally are given great weight by the judge in deciding contested custody . . . issues, the Judicial Council has adopted rules of court establishing uniform standards of practice for court-ordered custody evaluations.' [Citation.] California Rules of Court, rule 5.220 governs child custody evaluators appointed under section 730 and requires them to '[m]aintain objectivity, provide and gather balanced information for both parties, and control for bias.' (Cal. Rules of Court, rule 5.220(h)(1).)" (In re Marriage of Adams & Jack A. (2012) 209 Cal.App.4th 1543, 1563 (Adams).) Father contends the trial court erred in relying on the evaluator's custody evaluation because the evaluator was biased, and because his report failed to substantially comply with statutory mandates and applicable rules of court.
Initially, we reject Father's view that we must review his claims of error de novo. They are all based on purported legal errors that, on inspection, amount to instances calling for routine exercises of the trial court's discretion. We review the "trial court's ruling on the admissibility of proffered evidence for an abuse of discretion. [Citation.] Generally, '[o]nce it is established that a witness has adequate credentials to qualify as an expert, questions as to the degree of his or her expertise go to weight not admissibility.' [Citation.] . . . Additionally, lapses in professionalism affect only the weight of the evidence." (In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 653 (Winternitz).) It is the responsibility of the family court to assess the credibility of all witnesses, including expert witnesses like the evaluator. (Ibid.)
1. Bias
Father contends evaluator's reports should have been disregarded because he was biased against him. The cases cited by Father are distinguishable.
In Adams, supra, 209 Cal.App.4th 1543, the court concluded a custody evaluator should have been removed after the trial court found the evaluator had "lost his objectivity." (Id. at p. 1564.) Among other things, the evaluator made "ex parte communications to mother's counsel and the court, and imposed an escalating series of accusatory demands on father" at mother's request. (Id. at p. 1565.) When father moved to remove the evaluator, the evaluator refused, "forbade father and his counsel from contacting him, and proceeded to write a biased report." (Ibid.)
Father also relies on Leslie O. v. Superior Court (2014) 231 Cal.App.4th 1191 (Leslie O.), where the appellate court issued a peremptory writ of mandate, commanding the trial court to issue an order granting mother's request to disqualify the custody evaluator and strike her evaluations. (Id. at p. 1213.) In Leslie O., after reviewing the totality of the circumstances, the court determined that the evaluator "stepped outside her role as evaluator to advocate against" mother and help father by, among other things, including information unfavorable to mother in her report while ignoring information unfavorable to father, providing information to father and encouraging him to seek other counsel, and telling father, in effect, that she was on his side and that he should keep her updated regarding his visitation problems. (Id. at pp. 1205, 1209-1212.)
Father argues the evaluator "stepped outside" the role of an impartial evaluator, as in Adams and Leslie O. We disagree. Nothing comparable occurred here. Unlike the evaluators in Adams and Leslie O., there is no record here of improper ex parte communications or the evaluator's advocacy against Father. Any ex parte communications here were caused by the parties' conduct. The evaluator explained in his report and testified at trial that the interim report was necessitated by the lack of the parties' cooperation and inadequate funding of his services. These constraints, combined with the serious allegations of sexual abuse and the pending reintroduction visitation, prompted the evaluator to file an interim report with the court.
Father claims bias is demonstrated by the evaluator's failure to interview the children despite "indicia of the children's false reporting and improper influence by [M]other." But Father's claim of "false reporting" is not supported by the record. By all counts, S. provided a "reliable" and "solid" basis to support the conclusion of sexual abuse by Father. The trial court reviewed the MDI recordings and reached the same conclusion as the evaluator and the CPS social worker—S.'s MDI was valid. Father's expert acknowledged that the MDIs were performed in a manner consistent with producing valid and reliable results. While Father insists Mother improperly coached the children to lie about sexual abuse, the trial court found the clear weight of the evidence established the children's report of abuse by Father was not the result of coaching or other influence by Mother. There is ample evidence in the record to support this determination. We will not reweigh Father's conflicting evidence or redecide the trial court's factual findings. (Birnbaum, supra, 211 Cal.App.3d at p. 1513.)
Father argues bias because the evaluator ignored examples of exculpatory evidence, while relying on false reporting, and unsubstantiated "gossip" and inuendo from Mother. While the reports might omit some exculpatory evidence, the evaluator reported unseemly conduct by both parties. To the extent Father contends that Mother's and Father's allegations received disparate treatment, it is a reflection of the trial court weighing the evidence and deciding what weight to give the report. (Winternitz, supra, 235 Cal.App.4th at p. 653.) We will not second-guess that determination. (Ibid.)
Father contends the evaluator's bias is further revealed by his failure to meet with Father and update his report to include important missing information. The evaluator testified that "repeated obstacles" to funding forced his study to be limited in scope. As we discuss post, any shortcomings in the report go to its weight not its admissibility. (Winternitz, supra, 235 Cal.App.4th at p. 653.) Finally, the record shows that any omissions in the report were caused by Father's distrust of the evaluator and his failure to timely and adequately pay the retainer. (See, e.g. San Mateo Union High School Dist. v. County of San Mateo (2016) 213 Cal.App.4th 418, 435-436 [where party by his conduct induces the error, he is estopped from asserting it as a ground for reversal].)
The trial court did not err in failing to remove the evaluator or in considering his report.
2. Contents of Report
Father next contends the trial court erred in making the final custody order without a report in substantial compliance with Family Code, sections 3118 and 3111.
The Judicial Council has adopted standards for evaluations as required by the Family Code. (See Fam. Code, §§ 3117, 3118; Cal. Rules of Court, rule 5.220.) In Father's view, the evaluator's report does not meet these standards and therefore it was error for the trial court to rely on the report in making its final custody order.
Family Code section 3111, subdivision(a) provides: "A child custody evaluation . . . and a resulting report, may be considered by the court only if it is conducted in accordance with the requirements set forth in the standards adopted by the Judicial Council . . .; however, this does not preclude the consideration of a child custody evaluation report that contains nonsubstantive or inconsequential errors or both."
Family Code section 3118, subdivision (b) provides: "The evaluator . . . shall, at a minimum, do all of the following," and lists numerous sources of information to be reviewed. Section 3118, subdivision (a) provides in part that "[w]hen the court has determined that there is a serious allegation of child sexual abuse, any child custody evaluation . . . shall be considered by the court only if the evaluation . . . is conducted in accordance with the minimum requirements set forth in this section." And section 3118, subdivision (e) provides the "evaluation . . . standards set forth in this section represent minimum requirements . . . and the court shall order further evaluation beyond these minimum requirements when necessary to determine the safety needs of the child."
Father's claim is that because Family Code section 3118, subdivision (b) sets forth what the evaluator "shall" do, and subdivision (a) provides an evaluation shall be considered "only if the evaluation . . . is conducted in accordance with the minimum requirements set forth in this section," the trial court erred in relying on a non-conforming report. Father overlooks section 3118, subdivision (a)(2), which provides: "This section does not prohibit a court from considering evidence relevant to determining the safety and protection needs of the child." Thus, even if the evaluator's report reflected a technical defect, the family court had discretion to consider it as "relevant" expert evidence.
Father's argument fails to acknowledge that the Legislature's use of the term "shall" does not always have a mandatory, as opposed to directory, effect. "If a statutory directive does not go to ' "the essence" of the particular object sought to be obtained, or the purpose to be accomplished' and a 'departure from the statute will cause no injury to any person affected by it,' the provision will be deemed directory." (Cal-Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 673.) Here, the essence of the judicial task at hand was to determine whether reports the children were abused were true, and what disposition would be in their best interests (see In re Marriage of Burgess, supra, 13 Cal.4th at p. 32). In short, Family Code section 3118 sets forth standards or guidelines, not mandatory, inflexible, rules. The family court in this case could deem any purported gaps in the evaluation as going to the weight of the evaluator's opinion. He was a court-appointed expert (Evid. Code, § 730), he testified at trial, and Father exercised his rights both to cross-examine him at length and to introduce contrary testimony, to try to undermine his opinion.
"Ultimately, it was for the family court to assess the credibility of all the witnesses, including [the evaluator]. [Citation.] As an appellate court, we do not second-guess such evidentiary assessments. Accordingly, the family court did not err when it refused to strike [the evaluator's] report." (Winternitz, supra, 235 Cal.App.4th at p. 653.)
Finally, as noted ante, the shortcomings in the evaluator's report were precipitated by lack of cooperation by both parties, by Father's failure to timely and adequately replenish the retainer despite numerous court orders, and by Father's profound distrust of the evaluator. B. Any Hearsay Error Was Harmless
Father contends the trial court committed reversible error by relying on inadmissible hearsay contained in the declaration of the children's former therapist.
Although subpoenaed to appear, the former therapist did not testify at trial. Her declaration was considered by the evaluator and admitted for the non-hearsay purpose of information considered by experts. (Evid. Code, § 802.) Nevertheless, in its statement of decision, the trial court "considered" the therapist's report and found her "conclusions to be credible."
It does not appear that a bench warrant was secured.
Father argues the trial court's reliance on the former therapist's report was prejudicial error under People v. Sanchez (2016) 63 Cal.4th 665. We disagree. We review the erroneous admission of evidence under the familiar state law standard of prejudice. (People v. Stamps (2016) 3 Cal.App.5th 988, 997.) "The standard for prejudice applicable to state law error in admitting hearsay evidence is whether it is reasonably probable the appellant would have obtained a more favorable result absent the error. [Citations.]" (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1286.) We conclude the error here was harmless.
After an eight-day court trial, with extensive competing expert and lay testimony, and voluminous documentation, the trial court found clear evidence that Father abused the children. In making this determination, the trial court found S.'s reports of various sexual and physical abuse provided in her MDI were truthful. The children's current therapist testified at trial and noted in her report that she observed many of the same symptoms in the children (post-traumatic stress, anxiety, sleep disturbances, fears, flashbacks, and guilt) that were noticed by the former therapist, and she, like the former therapist, concluded these symptoms were the result of the past physical and sexual abuse by Father.
On this record, we do not find it reasonably probable the court would have reached a different result in the absence of the hearsay evidence.
III. DISPOSITION
The trial court's judgment is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Jackson, J.