Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. NJ12219A-C, Yvonne E. Campos, Judge.
IRION, J.
Carmen K. appeals orders assuming juvenile court jurisdiction over her children, Joshua K., Audrey B. and Samuel C., and orders removing them from her custody. She contends substantial evidence does not support the jurisdictional findings or the orders removing Audrey and Samuel, and the order removing Joshua must also be reversed because it was made in excess of the juvenile court's jurisdiction. We affirm the jurisdictional orders and the orders removing Audrey and Samuel. We reverse the order removing Joshua and remand the case for the court to clarify the placement order as to him.
FACTUAL AND PROCEDURAL BACKGROUND
On April 5, 2008, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of Carmen's three children, seven-year-old Joshua, four-year-old Audrey, and infant Samuel, under Welfare and Institutions Code section 300, subdivision (b). The petitions alleged the children were at substantial risk of harm because Carmen was delusional about issues of sexual abuse in that she had subjected Audrey to repeated medical treatments because of her unsubstantiated belief that Audrey's father, Gregory B., was sexually abusing Audrey.
Statutory references are to the Welfare and Institutions Code.
At the time the petition was filed, Gregory and Carmen were in a custody dispute over Audrey. After Gregory and Carmen separated in 2007, the Family Court ordered Gregory was to have regular visitation with Audrey. Carmen believed Gregory was sexually abusing Audrey during these visits. She took Audrey for examinations, but medical personnel saw no obvious signs of sexual abuse. Carmen insisted on performing vaginal examinations on Audrey before and after visits with Gregory. At Carmen's request, the examinations were witnessed by the monitor who supervised the exchanges of Audrey between Carmen and Gregory. Carmen performed approximately 18 of these examinations during a two and one-half month period. In addition, a family friend reported she had walked in on Carmen while Carmen was rubbing lotion on Joshua's penis to the point of erection.
As a part of family court proceedings, Carmen was evaluated by psychologist, Dr. Raymond Murphy. Dr. Murphy reported Carmen had significant emotional problems and was delusional about issues of sexual abuse and Audrey's safety. He suggested the fact that Carmen herself had suffered sexual abuse as a child had distorted her perception of the situation.
The court detained Joshua and Samuel in foster care, and Audrey with Gregory. After earlier recommending Joshua and Samuel be placed in foster care, the Agency changed its recommendation to placing Samuel with his father, D.C., and Joshua with Carmen, as long as she remained in therapy, was evaluated for medication, and ensured that Joshua was in therapy.
Carmen acknowledged she had not observed proper boundaries by repeatedly checking Audrey for sexual abuse, but she insisted she did not have any mental health problems and continued to allege that Audrey was not safe with Gregory.
The jurisdictional and dispositional hearings were continued for several months. During that time, Carmen's visits with the children brought forth further concerns. During one visit Carmen claimed Samuel was wheezing, and, although paramedics assured her he was getting enough air, she insisted he go to a hospital. At another visit she said Joshua, who has asthma, could not breathe and should be taken to a hospital. During both instances, medical personnel found nothing of concern. At one visit Carmen brought Samuel the shirt she was wearing when she gave birth to him. It was stained with blood and amniotic fluid. At a later visit she told Joshua she could not wait until they could again all sleep together in the same bed. She had trouble following the court's orders not to bring creams or lotions to visits to apply to the children's bodies.
In May 2008 Carmen underwent a second psychological evaluation. The psychologist who completed the evaluation, Dr. Iona Vail, disagreed with Dr. Murphy's evaluation and said Carmen was merely overanxious about Audrey being sexually abused. She opined Carmen could improve her parenting skills and provide excellent care of her children.
At the jurisdictional hearing, the court heard testimony from Carmen, Dr. Murphy, Dr. Vail, Carmen's therapist, and the social worker's supervisor.
Carmen denied having any history of mental illness and said she had never had any delusions. She explained about the boys' asthma, Joshua's eczema, and the shirt she had given Samuel. She detailed the reasons she believed Gregory had been molesting Audrey. She said she had not been protected against abuse as a child and believed she needed to protect Audrey, but she acknowledged her repeated examinations of Audrey were extreme.
Dr. Murphy reiterated his opinion that Carmen was delusional about issues of sexual abuse and Audrey's safety. He testified Carmen's vaginal examinations of Audrey far exceeded normal parent-child interactions, were inappropriate, and would be harmful to Audrey even if she had been molested.
Dr. Vail testified Carmen was not delusional. She diagnosed Carmen with adjustment disorder with mixed anxiety and depressed mood. She said Carmen's anxiety posed no risk to the children, but she did not recommend that they be immediately returned to her care. Carmen's therapist agreed Carmen had an anxiety disorder, but believed she was able to provide care for the children.
The social worker's supervisor, who testified as the Agency's expert on safety issues and risk assessment, opined Carmen's repeated examinations of Audrey for signs of sexual abuse presented a safety issue and could lead to Audrey thinking such behavior was normal. She also said there were safety concerns regarding Joshua and Samuel, but she opined Joshua could be placed safely with Carmen because he was older and could tell others if something inappropriate happened.
At the conclusion of evidence, the court made a true finding as to Joshua under section 300, subdivision (b), based on evidence Carmen had applied lotions or creams to his penis. As to Audrey it found true the allegations under section 300, subdivision (b) based on the repeated vaginal examinations. It also stated it believed an allegation as to Samuel could be sustained under section 300, subdivision (j) and, as to Joshua and Audrey, under section 300, subdivision (c). It requested the Agency file amended petitions to conform to proof.
At the disposition hearing, the court indicated the Agency had submitted amended petitions under section 300, subdivision (b). The amended petitions as to each child alleged Carmen was diagnosed with adjustment disorder with mixed anxiety and depressed mood and she had subjected Audrey to repeated medical treatments and unnecessary, inappropriate or invasive physical treatment attendant to unsubstantiated sexual abuse allegations. The court orally amended the petition concerning Joshua to additionally allege Carmen had subjected Joshua to inappropriate physical contact. The court sustained the petitions based on these allegations.
The court declared the children dependent children of the juvenile court. It removed Joshua from parental custody, but returned him to Carmen on the conditions he be placed in therapy, attend public school, and that Carmen participate in a medical evaluation and in-home services and learn about age appropriate expectations and boundaries. It placed Audrey with Gregory and Samuel with D.C., and ordered services for all of the parents.
DISCUSSION
I. Jurisdictional Findings
Carmen contends the court's jurisdictional findings under section 300, subdivision (b) were not supported by substantial evidence. She argues her mental health diagnosis did not form a basis for jurisdiction, and at the time of the hearing, she did not present any risk to the children because there was no evidence she would repeat her past behavior.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '... view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
In determining whether return to a parent's custody will pose a risk of detriment to a child, the court does not consider only the parent's current progress, but all aspects of the case including the parent's past behavior. (In re Katrina C. (1988) 201 Cal.App.3d 540, 546.) A petition is brought on behalf of the child, not to punish the parents. (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.) The focus of the statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
Substantial evidence supports the court's jurisdictional findings. Dr. Vail diagnosed Carmen with adjustment disorder with mixed anxiety and depressed mood. Her therapist agreed she had an anxiety disorder. Dr. Vail testified an individual with this diagnosis:
"would have trouble letting go of an idea, letting someone else make the decision for her. She would be extremely persistent... not being able to be reassured that everything was okay because inside of her that anxiety is boiling, and it's pressing her to do something about it."
Carmen's behavior fit this profile. Carmen remained convinced Gregory had sexually abused Audrey although her allegations were not substantiated. She had taken Audrey for two medical examinations and had personally inspected her vaginal area approximately 18 times in a two and one-half month period before and after Audrey's visits with Gregory. Also, there were reports Carmen had rubbed Joshua's penis to the point of erection, and even though she had been ordered by the court not to apply lotions or creams to the children's bodies during visits, she attempted to do so. In addition, Carmen showed her anxiety about the boys during visits, believing they could not breathe and wanting them to be transported to a hospital although she had been assured they were fine.
Dr. Murphy testified Carmen presented a risk to the children's safety. He opined Carmen's frequent examinations of Audrey could be detrimental to Audrey in later life, and Carmen's behavior would be harmful even if Audrey had been abused. He believed that if Audrey remained in Carmen's care, she would continue to make allegations of abuse against Gregory, further harming Audrey. He also was concerned that Carmen applied lotion to Joshua's penis, attempted to apply lotions to the children after being ordered not to do so, and discussed the sexual abuse allegations in front of the children. Carmen's argument Dr. Murphy's reports are invalid because he based them on a diagnosis that she had delusions and Munchausen's syndrome by proxy is not persuasive. The fact that Dr. Murphy used these terms does not invalidate his concern about the ways Carmen displayed her anxiety, causing harm to the children.
Munchausen's syndrome by proxy is synonymous with factitious disorder by proxy. (Med. Economics Co., PDR Med. Dict. (2nd Ed. 2000) p. 1761.) Factitious disorder by proxy is defined as "the deliberate production or feigning of physical or psychological signs or symptoms in another person who is under the individual's care." (Am. Psychiatric Assn., Diagnostic & Statistical Manual of Mental Disorders (4th ed. 2000) p. 781.)
The social worker's supervisor also testified about the risks that Carmen's behavior presented. She said Carmen's anxiety could make her continue to examine Audrey for sexual abuse, causing Audrey to believe this activity was normal and putting her in danger of future sexual abuse. She said Carmen harmed Joshua by speaking to him about the sexual abuse allegations, rubbing lotion on his penis, and talking about the family sleeping together. She said it was concerning that Carmen brought for Samuel the shirt she had worn when giving birth to him, noting he was very young and thus especially vulnerable.
Carmen argues her therapist and Dr. Vail both opined she did not pose a risk to the children. However, both of these individuals testified they had not reviewed the declaration of the visitation monitor about Carmen's repeated vaginal examinations of Audrey, and neither of them had ever seen Carmen with the children. Also Dr. Vail did not recommend the children be returned to Carmen immediately, but that she move toward unsupervised visits with them.
The totality of the evidence fully supports the juvenile court's jurisdictional findings.
II. Dispositional Orders
Carmen challenges the removal of Audrey and Samuel from her custody and asserts the order removing Joshua also must be reversed.
Section 361, subdivision (c)(1) provides a child may not be taken from the custody of his or her parents unless the juvenile court finds by clear and convincing evidence:
"There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's... physical custody."
A. Removal of Audrey and Samuel from Carmen's Custody
Carmen maintains substantial evidence does not support the court's orders removing Audrey and Samuel from her custody. She argues there was no evidence her mental condition would harm the children, no evidence her past conduct would continue in the future, and no basis to remove Samuel.
Substantial evidence supports the removal orders. The social worker's supervisor, who testified as an expert on risk assessment, opined there was a risk Carmen would continue to examine Audrey because she had never let go of her belief Gregory was molesting Audrey. Dr. Murphy testified this would harm Audrey by causing her to believe that such activity was normal. The social worker's supervisor further testified Carmen's lack of appropriate parental boundaries posed a risk to Samuel.
When the court asked Carmen about her repeated examinations of Audrey before and after visits with Gregory, she minimized her actions, saying four-year-old Audrey had given her permission before she examined her, indicating she thought her inspections were not so different from bathing or changing a diaper. She continued to believe Gregory had been molesting Audrey. Substantial evidence supports the court's order removing Audrey and Samuel from Carmen's custody.
B. Removal Orders for Joshua
Carmen points out the court ordered Joshua removed under section 361, subdivision (c)(1), but then stated it would "allow for his return to mother at this time," and the minute order reflects he was placed with Carmen. An order removing a child from a parent and then immediately placing the child with that parent is in excess of its jurisdiction. (In re Andres G. (1998) 64 Cal.App.4th 476, 483.) We thus remand the case for the juvenile court to strike the removal order and clarify its order placing Joshua with Carmen.
DISPOSITION
The order removing Joshua from Carmen's custody and placing him in her custody is reversed and remanded for the juvenile court to clarify the placement order concerning Joshua. All other orders are affirmed.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.