Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Super. Ct. No. CK72463, Sherri Sobel, Referee.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
BIGELOW, J.
M.T. (mother) appeals from the juvenile court’s jurisdictional and dispositional orders asserting jurisdiction over K.T.K. and A.T.K. On appeal, mother argues: (1) insufficient evidence supported the trial court’s finding of jurisdiction under Welfare and Institutions Code section 300, subdivision (b); (2) insufficient evidence supported the trial court’s dispositional order removing children from mother’s physical custody under section 361, subdivision (c)(1); and (3) the juvenile court improperly restricted mother’s rights in visiting with the children. We reverse the juvenile court’s jurisdictional order.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father (K.K.) separated in December 2003. They had two daughters, K.T.K. (born in 2001), and A.T.K. (born in 2003). In January 2008, the family law court issued a custody order awarding mother primary physical custody of the children. The order provided for joint legal custody. Between January 2007 and February 2008, the Los Angeles County Department of Children and Family Services (DCFS) received six referrals reporting that father had physically abused the children by hitting them or locking them in a dark room. DCFS social workers investigated each referral but never saw bruises or marks on the children. On some occasions, the children denied the allegations. DCFS further reported “collaterals” believed the children were being coached. DCFS noted the family was in counseling in connection with the family law proceeding and determined the abuse allegations were unfounded in each instance.
The custody order also prohibited the parents from making derogatory or disparaging remarks about each other in the presence of the children. The parents were ordered not to discuss the case with the children.
In March 2008, DCFS received another referral alleging father had physically abused A.T.K. A.T.K. had a large bruise on her left buttock, and she reported father hit her. DCFS filed a petition alleging father had physically abused the children. The petition proposed dependency jurisdiction under section 300, subdivisions (a), (b), and (j). In interviews with DCFS, the children reported father hit them and called them liars, and they asked for help to get him to stop.
Father denied ever hitting the children and stated mother had made several false reports against him. He reported that whenever a family law court date was imminent, a referral was called in to DCFS. He also claimed mother denied him access to the girls, violated court orders, and deliberately kept him uninformed. Mother told DCFS the girls had been complaining that father hit them for a long time. She said she told the girls to tell her if someone hurt them, but denied coaching them to say father abused them. The children’s therapist reported the girls had told her father hit them. The therapist believed the children and did not think they were coached.
In April 2008, the juvenile court detained the children and released them to mother. In a May 2008 jurisdiction and disposition report, DCFS noted the girls were suffering emotional distress as a result of the parents’ ongoing custody battle. DCFS also concluded A.T.K.’s bruise was not consistent with her explanation that father hit her. Instead, the bruise was consistent with the paternal grandmother’s statement that A.T.K. had previously reported tripping and falling on stairs. DCFS recommended that the court order a family evaluation under Evidence Code section 730, so a neutral therapist might provide DCFS “with a recommended course of action, to include dismissal of the Petition.”
The juvenile court appointed Dr. Ian Russ, a licensed family and child therapist and child custody evaluator, to evaluate the family. The court requested that Dr. Russ assess the likelihood father had physically abused the children. The court also asked Russ to evaluate whether one parent had coached the children, and to what extent DCFS intervention was necessary.
Dr. Russ observed and interviewed the children and parents at each parent’s home, and in his office. He also interviewed the children’s and parents’ separate therapists, the children’s pediatrician, the children’s teachers, and a DCFS investigator and social worker. He reviewed various documents, including the DCFS reports, and documents from the family law proceeding that father’s counsel provided to him without court permission. Mother argued Russ’s review of documents from the family law proceeding was improper and tainted his opinion. The juvenile court rejected the argument, crediting Russ’s testimony that the family law documents did not significantly affect his opinion. On appeal, mother contends this was error.
Dr. Russ concluded there was no evidence father had abused the children, and no evidence that anyone else had physically abused them. He also opined it was likely that mother coached the children to lie about father. He indicated the children “seek [mother’s] approval by saying the allegations, and fear either mother’s sadness or anger if they do not make the allegations about father.” Russ found the children were attached to both parents and were “ridden with anxiety in their fear that they will lose one or both of their parents.” Yet, Russ observed: “[The children] are basically happy girls. Their schools report that they are smart and currently both of them display good social skills.... [¶] Physically, both girls are in good health with the exception that [K.T.K.] meets the criteria for obesity and [A.T.K.] is markedly overweight.” Russ was also concerned by an album of photographs mother showed him. Mother had taken pictures of the children that purportedly reflected scratches or bruises they received after spending time with father, or in one case, a picture of the child’s soiled genital area, which mother claimed demonstrated that father had not changed the girl’s diaper.
Ultimately, Dr. Russ recommended:
“[T]hat father [take] immediate custody of the children and that mother, for the time being, only have monitored visitation. This raises several concerns. The most serious is that I do not know how this will affect mother’s emotional stability, even if only temporarily. According to mother’s therapist, mother has a history of early enmeshment with the children. It is my opinion that mother’s fear of losing the girls could trigger a significant regression and enmeshment, so that mother experiences the change of custody as a loss of her self. This potential panic makes her behavior unpredictable and could place the children in danger. I want to be clear, mother has no history of physically endangering the children, and I know of no history of her ever endangering anyone in an immediate way. However, even if the children are not in immediate danger, it is likely that mother will share this with the children and their resulting fear of losing mother will increase the children’s panic and their allegations about father.”
Although Russ interviewed mother and mother’s therapist, the report did not indicate he conducted or received any psychological evaluation of mother.
At some point, Dr. Russ contacted the court and requested a conference. The juvenile court later characterized the conference as a warning under Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 (Tarasoff). Although it appears that counsel was gathered for a conference, the record does not include a reporter’s transcript, nor does it indicate what information was shared. However, Russ’s report opened with a warning that he did not know whether his findings “would emotionally destabilize mother to the extent of endangering the children.” Russ suggested in the report that DCFS remove the children and transport them to father before mother received notice of Russ’s findings.
In Tarasoff, the court held that when a therapist determines his or her patient presents a serious danger of violence to another, the therapist incurs an obligation to use reasonable care to protect the intended victim against the danger. Civil Code section 43.92 later limited the therapist’s duty to warn to situations in which a patient’s communications lead the therapist to believe the patient poses a serious risk of grave bodily injury to another. (Calderon v. Glick (2005) 131 Cal.App.4th 224, 231; Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 816, 820.)
DCFS subsequently detained the children. DCFS described its actions in a June 5, 2008 detention report: “After an assessment on 6/2/2008 and a 730 Evaluation Report by Custody Evaluator Dr. Ian Russ, it was determined by the Department that the allegations against the father may be false and that the mother is ‘coaching’ the girls to lie about the physical abuse by their father. Further, Dr. Russ expressed that the children are at risk of harm with the mother, the mother may harm the children, harm herself, or run away. [¶] In view of the above facts and an assessment conducted by [a DCFS social worker], the level of risk to the safety of the children is high.”
DCFS filed an amended petition that included a count under section 300, subdivision (c). The petition charged that the children were suffering or were at substantial risk of suffering serious emotional damage evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior as a result of mother coercing them to make false physical abuse allegations against father. The petition’s supporting allegations cited the children’s “emotional pain and suffering as indicated by the minors’ crying uncontrollably proclaiming extreme confusion over who to trust or who to believe. Further minors[] agonize over their loyalties to their parents and fear displeasing their mother by admitting their contentment with their father.” DCFS recommended that the court dismiss all allegations relating to father and sustain the section 300, subdivision (c) count based on the allegations involving mother.
In June 2008, the court held a jurisdiction and disposition hearing. Dr. Russ testified mother had not abused or neglected the children. However, he indicated the issue was “enmeshment.” Russ stated:
“I did not find that there was any physical or sexual abuse of the children; that--I’m unclear how much mother has encouraged the children to say things that are false. If--the more that is accurate, the more emotionally abusive that is to the children. The--but the issue is not primarily abuse. It’s really enmeshment and what we would see as--literature would call it an attachment, but an anxious attachment, where the children are terrified of displeasing mother and that--so, depending on how much mother directly encourages those words to be said and how much is in that enmeshment, to determine kind of more enmeshment and more abuse. I mean, that would be--and, that, I don’t know.”
The court asked if Russ saw either child “having severe anxiety[,] depression, withdrawal, or aggressive behavior towards self or others? Any or all of those with either one of these children?” He answered: “In general, all of the reports are no. In specific they clearly had a lot of anxiety at the time their mother brought them to my office.” The colloquy continued: “THE COURT: Okay. Would you consider that situational? [¶] [Russ]: Yes.”
The juvenile court dismissed the counts involving father under section 300, subdivisions (a), (b), and (j). The court then stated, “What was (c) will be sustained as the amended (b)(1)[,]” thus effectively dismissing the section 300, subdivision (c) count by converting it into a count under section 300, subdivision (b). The court explained:
“Dr. Russ’s opinion is, A, the children were not abused by their father, period; B, the mother is completely enmeshed with the children to such a degree that she may be making allegations that, in her mind, are true. And, as a result, these children are completely anxiety ridden and scared to death regarding the relationship between them and both of their parents. [¶] Now, when I asked [Dr. Russ] about anxiety--because I asked him the specific [section 300, subdivision] (c) questions before he left, and he did indicate that it was situational. And I do think, when we sort this out in some form or fashion, the children will calm down slightly. [¶] The department is asking me--and--and I actually agree with [mother’s counsel]. I used [In re Alexander K. (1993) 14 Cal.App.4th 549], but both of those cases require the same three prongs: prong No. 1 is the parents’ conduct; prong No. 2 is causation; and prong No. 3 is the behavior--resultant behavior of the children, risk or at risk. [¶] At this point, I don’t know enough about the children’s day-to-day or schooling or how they behave when they’re not involved in a system like this to sustain a [section 300, subdivision] (c), which is very--which is a serious thing to sustain for children. It follows them a little bit and I’m a little uncomfortable about it, although I honestly believe that the department’s made its case.”
The juvenile court asserted jurisdiction under section 300, subdivision (b) alone. In support of jurisdiction, the court cited the petition’s allegations that mother’s actions had caused the children unnecessary anxiety and fear of losing either parent, as evidenced by their crying and confusion. The court found that returning the children to mother would create a substantial risk of danger to the physical or emotional well-being of the children and there were no other reasonable means to protect the children without removing them from mother. The court released the children to father and ordered reunification services for mother, including monitored visitation and monitored telephone calls with the children.
Mother’s appeal followed.
DISCUSSION
I. Substantial Evidence Did Not Support Jurisdiction Under Section 300, Subdivision (b)
Mother contends there was insufficient evidence for the juvenile court to assert jurisdiction under section 300, subdivision (b). We agree.
“On appeal from an order making jurisdictional findings, we must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]” (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
Under section 300, subdivision (b), the court may assert jurisdiction if “the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.”
As explained in In re Rocco M. (1991) 1 Cal.App.4th 814, 823, “[s]ubdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (Accord, In re David M. (2005) 134 Cal.App.4th 822, 829; In re Janet T. (2001)93 Cal.App.4th 377, 391.)
In this case, there was no evidence the children had suffered serious physical harm or illness due to mother’s conduct, or that there was a substantial risk they would suffer serious physical harm or illness due to her conduct. All of the evidence of mother’s problematic behavior had to do with her coaching the children to make false allegations about father and her “enmeshment” with the children. The evidence, which came almost exclusively from the Russ report and testimony, focused on the emotional harm this had or could cause the children. But there was no evidence mother’s behavior created even a risk of physical harm or illness. To the contrary, Russ testified mother had not abused or neglected the children—except perhaps emotionally depending on how much she had coached them—and all other reports indicated the girls were well-adjusted aside from their situational anxiety because of the custody dispute.
In addition, while the children were overweight and Dr. Russ opined mother’s response to the problem was inadequate, the children’s doctor also informed Russ the girls had both lost weight recently. The juvenile court noted, “It is not the father who has an issue with the children’s food source. The children are quite overweight. The mother doesn’t seem to see it. The food she was bringing was inappropriate, although, when redirected, she did get better at that.”
In re Matthew S. (1996) 41 Cal.App.4th 1311 is instructive. In Matthew S., the mother suffered from mental and emotional problems. She suffered delusions that her son’s genitals had been mutilated. She also had a delusion in which she murdered the son’s treating physician after she discovered the son in a septic state at the hospital. (Id. at p. 1314.) Acting on the delusions, mother forced the son to see a urologist. (Ibid.) An evaluating doctor was concerned about mother’s sometimes morbid and violent delusions, but her children appeared healthy and reasonably well-adjusted. (Id. at p. 1317.) The court found substantial evidence did not support jurisdiction under section 300, subdivision (b), where there was no evidence that Matthew had suffered or risked suffering serious physical harm or illness as a result of his mother’s mental and emotional problems. (Id. at p. 1319.) Although the court found evidence supported a finding that Matthew was at substantial risk of suffering emotional harm, such evidence was sufficient to sustain jurisdiction under only section 300, subdivision (c). (Id. at pp. 1320-1321.) Likewise, in this case there is no evidence the girls suffered or risked suffering serious physical harm or illness, despite mother’s enmeshment and coaching.
DCFS cites In re Heather A. (1996) 52 Cal.App.4th 183, to support its argument that jurisdiction under section 300, subdivision (b) was proper, but the case is inapposite. In Heather A., the father engaged in violent confrontations with his wife while the children were present. Although the case discussed secondary abuse and the emotional damage the children would suffer as a result of the father’s domestic violence, the court upheld the juvenile court’s jurisdictional findings under section 300, subdivision (b) because of the likelihood of future physical harm or illness. The court found the children risked suffering physical harm or illness, either as bystanders during one of father’s violent confrontations with a wife or partner, or later in life due to battered women’s syndrome, which might lead them into relationships in which they would become direct victims of domestic violence. (Id. at pp. 194-195.)
In contrast, here there was no evidence the children had suffered or were at substantial risk of suffering serious physical harm or illness as a result of mother’s actions. The juvenile court dismissed all counts based on physical harm, which arose out of father’s alleged abuse. The remaining allegations concerned emotional harm that either had or could come to the children as a result of mother’s coaching. Dr. Russ’s evaluation indicated the children were generally healthy and exhibited no signs of abuse from father or anyone else. Russ further acknowledged mother had no history of physically endangering the children or anyone else. He did not indicate, as a general matter, that mother was likely to cause the children to suffer serious physical harm or illness. Instead, without conducting any kind of psychological evaluation, Russ feared mother could potentially be driven to endanger the children in an unspecified manner if faced with the threat of losing custody in the dependency proceedings. Despite the mention of a Tarasoff warning, the record contains no evidence that mother made any comments that could have been construed as a threat of physical violence. Further, the DCFS social worker testified that when DCFS removed the children from mother, she did not have the bad reaction Russ had feared. Jurisdiction under section 300, subdivision (b) was not supported by substantial evidence.
II. Section 300, Subdivision (c)
Section 300, subdivision (c) allows the juvenile court to assert jurisdiction over a child if she “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 or guardian or who has no parent or guardian capable of providing appropriate care.” DCFS states that the juvenile court correctly found that section 300, subdivision (c) did not describe the children. But it also urges that if this court concludes jurisdiction under section 300, subdivision (b) was improper, we may affirm the juvenile court’s judgment under section 300, subdivision (c). In support of this argument, DCFS cites In re Dirk S. (1993) 14 Cal.App.4th 1037, for the proposition that section 300 offers several bases for dependency jurisdiction, “any one of which is sufficient to establish jurisdiction.” (Dirk S., at p. 1045.)
The problem with the DCFS’s argument is that here, the juvenile court explicitly rejected section 300, subdivision (c) as a basis for jurisdiction, effectively dismissed the count of the petition under that subdivision, and asserted jurisdiction under section 300, subdivision (b). The case does not present a situation in which the juvenile court asserted jurisdiction under several different statutory bases, or even broadly under section 300 such that we may imply that it asserted jurisdiction under section 300, subdivision (c). (Cf. In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.)
DCFS did not file a cross-appeal to challenge that ruling. Moreover, substantial evidence supported the juvenile court’s rejection of the section 300, subdivision (c) count. Despite the children’s anxiety and fear of losing their parents, Dr. Russ testified the children did not appear to be experiencing severe anxiety, depression, withdrawal, or aggressive behavior toward themselves or others. (Cf. In re H.E. (2008) 169 Cal.App.4th 710 [mother made incessant and extensive unfounded allegations that father sexually abused child, causing child to exhibit aggressive behavior unusual for a child her age]; In re Anne P. (1988) 199 Cal.App.3d 183 (Anne P.) [as a result of custody battle and mother’s allegations that father sexually abused child, minor was severely depressed and emotionally disturbed].) Instead, Russ indicated the girls were experiencing “situational” anxiety when mother brought them to his office. The girls were generally happy and healthy. This was the case even though allegations of physically abuse had sporadically occurred for over a year. The trial court could reasonably conclude the children were not suffering or at risk of suffering serious emotional damage.
A reviewing court may affirm a juvenile court judgment if substantial evidence supports jurisdiction under any one of several asserted statutory bases. This general proposition does not give us license to reverse the juvenile court’s jurisdictional findings rejecting certain statutory bases when substantial evidence supports such findings. We would only be substituting our own judgment in place of that of the juvenile court. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333 [if there is substantial evidence, we affirm even if other evidence supports a contrary conclusion].)
Thus, we feel constrained to reverse the jurisdictional order in this case, and the dispositional order thus becomes moot. (In re R.M. (2009) 175 Cal.App.4th 986, 991.) We need not address mother’s other arguments on appeal.
To the extent mother coerced the children into making false statements about abuse, we do not condone her behavior. And, in a case in which such behavior causes or risks causing serious harm to the children, the juvenile court’s assertion of jurisdiction is appropriate, most often under section 300, subdivision (c). (Anne P., supra, 199 Cal.App.3d 183.) To be clear, our ruling does not prejudice DCFS from filing a new petition should new circumstances justify a new finding of jurisdiction.
DISPOSITION
The orders of the juvenile court as to mother are reversed.
We concur: RUBIN, Acting P. J. BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Of course, the family law court has continuing jurisdiction once custody orders are entered. (In re Marriage of Kreiss (2004) 122 Cal.App.4th 1082, 1085.)