From Casetext: Smarter Legal Research

In re M.M.

California Court of Appeals, Fourth District, Second Division
Sep 9, 2008
No. E045230 (Cal. Ct. App. Sep. 9, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Nos. J216858-J216860. James A. Edwards, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.

Susan Bookout, under appointment by the Court of Appeal, for Minors.


OPINION

King, J.

J.D. (born in November 2002) and M.D. (born in April 2001) are the sons of father and appellant (mother). M.M. (born in June 1998) is the daughter of mother and A.F. Minors came to the attention of the Department of Children’s Services (the department) for the second time when mother brought the two boys to the hospital with wounds to their penises, which they claimed father had inflicted. Mother and father were engaged in an acrimonious custody battle over the minor boys at the time. Unable to determine whether father had inflicted the injuries or mother had done so in order to blame father so as to further her position in the family law matter, the department recommended declaring all minors dependents of the court and removing them from the custody of the parents. The juvenile court declared all minors dependents of the court and found that clear and convincing evidence supported removal from both parents’ custody. On appeal, mother challenges the sufficiency of the evidence supporting the juvenile court’s jurisdictional findings as to J.D. and M.D. and its dispositional order removing M.M.from her custody. We affirm the court’s jurisdictional orders, but reverse the dispositional order as to M.M.

Neither father nor A.F. appealed the juvenile court’s findings and neither is a party to the pending appeal.

I. FACTS AND PROCEDURAL BACKGROUND

On April 18, 2007, mother reported to the department that J.D. returned from a visit to father’s home, where father had placed a rubber band on his penis. In an interview conducted by police, J.D. reported that mother had placed the rubber band on his penis, but that the incident had occurred at father’s home. However, during the course of the interview, J.D. continually changed the identity of the perpetrator. A medical report indicated that there was some redness, in the form of a small indentation, on the base of J.D.’s penis around the circumference of the shaft. Mother had informed the examiner that father had placed a rubber band around his penis. A box indicating “no” was checked on the medical report as to whether the injury was abuse related.

Later that week, during a supervised visit with father, J.D. was observed telling father six times that father was a “banshee” who came from the dark side where the devil comes from. The social worker was concerned that the incident reflected upon the veracity of father’s reports that mother exercised undue influence over minors. In a later meeting with a therapist, J.D. denied that the incident with the rubber band ever occurred.

Father later provided the department with documentation showing that mother had made a similar allegation of abuse against father before. In November 2006, mother had brought J.D. to the hospital due to a small circular abrasion on his back which she alleged occurred as father hit J.D. with a hammer. A neighboring patient reported to a nurse that mother was coaching J.D. what to tell the medical staff regarding the injury. J.D. reported that he had merely fallen off the couch. The medical report indicates the injury was inconsistent with being hit by a hammer.

In May 2007, mother reported that minors had simulated a sex act while in the bathtub, reporting that father had put his fingers up their butts. Mother alleged the incident had been discussed between father and the boys at their previous supervised visitation; however, the social worker present at that visit reported no such discussion. Likewise, after another supervised visit with father and the paternal aunt, mother reported that the boys told her the paternal aunt had spoken ill of the maternal grandmother; however, the social worker present at that visit reported no such remarks.

J.D. later reported that the reason he was required to have supervised visits with his father was because of the “story” he made up. J.D. referred to himself as the “story man” and said it is fun to tell lies. J.D. reported that his mother had placed rubber bands around his head, then indicated that that was a lie. M.D. reported that J.D. tells lots of stories to get attention and that nothing improper had ever occurred at father’s house.

At all times during visitation with father, neither minor appeared fearful of father. There was no evidence that minors had suffered emotional abuse at the hands of father. “The children have never stated that they fear their father and have emphasized more the desire to stay with him and go back to [unsupervised, lengthier] visits [as] prior to [the department’s] intervention.” Due to J.D.’s several recantations of the rubber band “story,” the social worker concluded that he made the story up to garner attention. The social worker recommended dismissal of the case. The allegations were subsequently dismissed.

On August 28, 2007, mother took minors to the hospital again due to injuries sustained to both minors’ penises. The children had come home from a visit with father on August 26, 2007, and reported that father had again placed rubber bands on their penises. J.D. reported that father and “Cindy” had placed rubber bands on his penis and then took pictures. Medical examinations of the boys’ penises revealed red abrasions.

The department filed Welfare and Institutions Code section 300 petitions as to all three minors, alleging failure to protect by both father and mother as to the minor boys, serious emotional damage due the placement of the rubber bands around the minor boys’ penises, physical abuse regarding the rubber band incident, and sibling abuse.

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

All three minors were detained and Child Assessment Center (CAC) interviews were conducted with them. The resultant reports noted that “[o]ne of [M.M.’s] half brothers was heard to say that the [rubber band] incident had not occurred and their mother . . . told him to say it. There are inconsistent disclosures from the minors’ half brothers regarding the rubber band being placed around their respective penises. There is a previous report where [J.D.] . . . stated that their mother, . . . put a rubber band around his penis[].” M.D. stated that father placed a rubber band around his penis because he was mean. However, when asked details about the time of day and the room in which the incident occurred, M.D. was unable to answer. When asked questions with answers presented in an either/or fashion, M.D. was noted to answer with the last suggested response, i.e., if asked whether the incidents occurred during the day or night, M.D. would say night. J.D., likewise, reported that father had placed a rubber band around his penis because he was mean. J.D. also expressed that his mother told him to tell the officer that his father put the rubber band on his penis and he would be rewarded with a toy. During her interview, M.M. reported numerous negative characteristics of father, including physical abuse of the minor boys and domestic violence against mother; however, the interviewee concluded that “it . . . appears that the minor may be parroting her mother and/or grandparents[’] statements and perhaps drawing conclusions without being privy to all the facts of the matter.”

During M.D.’s interview, he initially denied anything had happened to his penis; however, he later claimed father had placed a rubber band around his penis causing it to bleed. “To assess for suggestibility, the minor was asked if [father] [p]ut the rubber band on with a crayon to which he replied affirmatively.” The interviewee concluded that “[s]everal of [M.D.’s] statements had fantastical elements to them and most of his disclosures lacked contextual, sensory details.”

During J.D.’s interview, when asked why pictures were taken of their penises, J.D. replied, “to make sure our mom did it.” “[J.D.] said that [father] took ‘twelve’ photos, then took them to the police, ‘like our mom did it.’” J.D. indicated the father’s girlfriend, “Cindy,” played with their penises. J.D. stated that father expressed that he would be rewarded if J.D. lied about mother. J.D. stated that he loved his father and would like to visit him, but expressed concern that another rubber band might be placed on his penis. J.D. reported several negative habits of his father of which he had learned from mother.

A comprehensive psychological assessment and report on parents and minors was conducted by Dr. Robert Suiter. In that report, Dr. Suiter noted that both J.D. and M.D. had admitted in a video recording to lying about the April rubber band incident. When seen on a subsequent occasion by Dr. Suiter, J.D., brought in by his mother, was asked if he had anything else he would like to report. J.D. replied that, “‘My dad is mean and he broke my mom’s nose.’ When asked how he knew that[,] he was unable to provide an[] adequate answer. When asked if anyone had told him that[,] he stated, ‘Mom told me.’” When leaving the office, J.D. was observed running to mother and exclaiming, “‘Mom, I told the truth.’” This was indicative to Dr. Suiter that mother had coached J.D. in what to report. Dr. Suiter noted that the boys go to father readily without the slightest hesitation and give him hugs. He concluded that mother’s reports of domestic violence against her by father were unsupported.

Dr. Suiter noted that M.M.’s characterizations of father were “so extreme in terms of her criticisms of him and her assertions of his physical disciplining of her that her reports were not credible.” This was “reflective of a ‘Hitler and Snow White’ mentality which reflects her mother’s negative view of [father] rather than [M.M.’s] own view of him.” Dr. Suiter concluded that “[t]he data from this examiner’s evaluation did not support that the children had been harmed by their father. While it could not be determined that the allegations had been orchestrated by their mother it was very noteworthy by this examiner that the allegations were quite unusual in nature and that [mother] would place such credence in the allegations. Indeed, it is evident that if [J.D.] were to say his father had an elephant step on his leg that [mother] would not question that description. Indeed, she would most likely contact animal control to find the elephant at [father’s] home.” As to M.M., it was evident that “she views her mother favorably and feels well cared for by her mother.” Dr. Suiter concluded that neither parent presents a risk of harm to the children and recommended shared custody of the minor boys or, should additional allegations be made against father by mother, sole custody of the minor boys with father. Mother was to be told that if there were “further unfounded allegations made by her regarding mistreatment of the children, strong consideration would be given toward placing the children with their father primarily.”

The department’s addendum report, to which Dr. Suiter’s report was appended, noted that it was still uncertain who had inflicted the minors’ penile injuries. It recounted two instances in which mother had interrupted father’s supervised visitation. In one instance, mother arrived early for her visit with minors and disrupted father’s visit when it ran long. In the second instance, mother arrived at the location for father’s supervised visit on a day in which she did not even have a scheduled visit with minors. This resulted in an altercation between father and mother. The department recommended minors remain in foster care during impending reunification services.

As both minor boys were found to be Indian children, an Indian Child Welfare Act (ICWA) expert was sought to prepare a report. The ICWA expert reported that “[w]hile the final identity of the perpetrator remains in question, it is clear from the medical examination that the children were injured by someone while in the care of one or the other of the parents who either perpetrated the abuse or at best failed to prevent its occurrence.” “The inability to clearly identify the perpetrator does not diminish the risk of harm to the children. It appears that the children are in the middle of a custody fight between the parents. That by itself is emotionally damaging to the children. Evidence of that is apparent [in] that the children are accusing one or the other of the parents of being the perpetrator. This can hardily cause them to be or feel safe in the care of the parents.” The ICWA expert recommended minors be declared dependents of the juvenile court and that custody of the children be removed from the parents as a return would “present[] a danger of severe emotional and physical harm to these Indian Children.”

An additional addendum to the jurisdictional/dispositional report indicated that mother still lived with minors’ maternal grandparents and that the “maternal family members are enmeshed with the mother and would possibly continue to alienate the father from the boy[s’] lives.” On the other hand, the report also noted that the “paternal family members are enmeshed with the father and would possibly alienate the mother from the boy[s’] lives.” Father reported that the minor boys told him mother informed them father did not love them. “The father states he feels the mother is still brain washing the children against him.”

At the initiation of the contested dispositional and jurisdictional hearing on February 11, 2008, the department orally amended the petitions, striking the failure to protect allegations, leaving, solely as relevant here, allegations of physical abuse against the minor boys, serious emotional abuse as to the minor boys, and sibling abuse as to all minors. All reports, including those prepared for the initial case regarding the April 2007 incident, were received into evidence. Video recordings of the minors’ CAC interviews were played in court and transcripts of those recordings were presented to the court. The video recordings and transcripts were later admitted into evidence.

The parties stipulated that the reporter need not report the contents of the recordings. However, the record on appeal contains neither the video recordings, as exhibits, or the transcripts of those recordings. Thus, all this court has access to are the summary CAC reports.

T.J. Fryberger, a supervising social worker, testified at the hearing that the department still cannot determine who was responsible for the minors’ injuries, though the department definitively recognized that such physical abuse had, indeed, occurred. The difficulty of determining the responsible party was due, in part, to both minor boys’ inconsistent designation of the perpetrator of the alleged abuse. Moreover, Mr. Fryberger noted that “the children kept making consistent statements that the mother was the perpetrator [of the previous abuse allegation]; however, the abuse occurred in the father’s home.” This presented the apparent problem that mother and father lived separately and never watched the children alone in each other’s residences. Likewise, as to the first allegation of abuse, J.D. had indicated mother told him to say father was responsible. J.D. said he would be rewarded by mother with a toy for blaming father.

Nevertheless, Mr. Fryberger, who also testified as an expert, testified that coparenting or relational problems between mother and father regarding custody of the minor boys was the major issue in the case. The emotional abuse alleged in the petitions occurred as a result of discussions each parent had with the minors or in front of the minors regarding the other parent within the context of the custody dispute. This resulted in “dysfunctional attachments, that affect[] the children one way or the other.” “The relational issues between the parents and the instability about where these children are going to be long-term—they can’t establish any form of routine. That’s emotionally damaging the children.” The minor boys changing stories and confusion were emblematic characteristics of such emotional disturbance. “There’s a lot of statements—and I don’t mean to sound really overbroad and general here—but there’s a lot of statements that make it look like [mother] has made disparaging remarks about the father . . . . The kids have soaked a lot of this up, which leads to the issue of emotional damage and different types of things.”

Mr. Fryberger noted that M.M., now nine, stated she would prefer to live with mother rather than in a placement. M.M.’s father approved placement of M.M. with mother. Mr. Fryberger indicated that there was no history of M.M. being injured in her mother’s care. Mr. Fryberger also recognized that Dr. Suiter recommended mother receive joint custody of the minor boys. “[M.M.] is a difficult situation, I will definitely agree to that. . . . Now, I understand [M.M.] hasn’t experienced anything directly, but without knowing who’s done what, I would [balk] [at] any recommendation that would place [the] children with either parent until the relational issues are worked out individually by both.” “Taking into consideration everything, I would say, yes, [there is a risk of physical injury to M.M.]. Now, for—do I have any direct evidence that she has been abused? No. But would I say she’s at risk? Yes.” “Well my concern is that she’s continually being exposed to [mother’s statements regarding father], even though she is not the direct child of [father]. . . . [T]here’s a lot of parroting going on and there’s a concern that if something did happen to that child, would we get accurate information from that child, or would we get what she has heard from Mother?” Mr. Fryberger also noted that there was evidence that A.F. had distanced himself from M.M. years earlier because of mother’s contentious nature regarding custody issues.

Though tasked with completing a comprehensive psychological evaluation and report regarding all minors and parents, Dr. Suiter only made recommendations regarding custody of the minor boys. Nevertheless, we regard Dr. Suiter’s recommendation of joint custody of the minor boys between mother and father as an implicit recommendation of sole custody of M.M. with mother, particularly because A.F., M.M.’s father, had not seen M.M. for some time, was not requesting custody of M.M. himself, and was not evaluated by Dr. Suiter.

After Mr. Fryberger’s testimony, mother’s counsel played excerpts from M.M.’s CAC interview, the purpose of which was to apparently demonstrate how vehemently M.M. wished to return to mother’s custody. The department offered to stipulate that M.M. expressed in the interview her wish to return to mother’s custody; however, mother declined the stipulation apparently hoping to evince “more than just saying, ‘I want to be with Mom.’” “It has to do with the time with [father] and time with [mother]. We spent a lot of time talking about that with the social worker. I think it’s contrary with what the social worker had to say, and I think it clearly explains from [M.M.’s] mouth what her thoughts are.” Again, we have neither the video recording nor the transcript of that recording.

Father testified that “Cindy” was a secretary for his previous family law attorney. She was never his girlfriend and was living in Colorado at the time of the alleged rubber band incident.

The court found the allegations in the petitions true and found all minors dependents of the court. The court noted that, “I think there is evidence of coaching by the mother, and I don’t just mean a statement attributed to a person that overheard her say something at the hospital, but given the video of [J.D.’s] interview, he certainly made frequent references to information that he was relaying and the source of that information came from his mother. So I think there’s some coaching there as well.” The court concurred that “we all seem to agree that this is physical harm that was imposed on the boys.” Moreover, it found that, “I think, certainly, there’s emotional harm being placed on these children by the fact that disparaging remarks are being made in front of the children, which cause them a great deal of confusion in addition to the natural emotional harm that’s caused from the separation or divorce.” Therefore, the court ordered removal of custody of all minors from both parents. When asked to give a factual basis for not returning M.M., the court declared, “[T]he factual basis is basically the same as to the other two. I think there is this conflict that is going on between the parents, between [father] and [mother], that is also affecting [M.M.]. I think this is an emotional threat to her emotional well-being, as well as—I’m not so concerned that it’s to her physical well-being, but more to her emotional well-being.”

II. DISCUSSION

A. Jurisdictional Findings as to J.D. and M.D.

Mother attacks the sufficiency of the evidence of the court’s jurisdictional finding solely as to the section 300, subdivision (c) allegations that M.D. and J.D. were suffering serious emotional damage or at substantial risk of suffering serious emotional damage. She does not challenge the court’s jurisdictional findings on the section 300, subdivision (a) allegation that the minor boys had suffered or were at substantial risk of suffering serious physical harm. Neither does she argue that the court erred in removing the minor boys from her custody. We find that substantial evidence supports the juvenile court’s finding.

“‘“In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.”’ [Citation.]” (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379 (Brison C.).) “‘The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile court’s jurisdiction.’ [Citation.] Section 300 sets forth the grounds for dependency jurisdiction.” (Id. at p. 1379.)

Subdivision (c) of section 300 provides, in relevant part, that a child may be declared a dependent if he or 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 . . . .’” (Brison C., supra, 81 Cal.App.4th at p. 1379.) “Thus, to prove [minors] came within the statutory definition of . . . dependent child[ren], the county bore 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. [Citation.] ‘While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.’ [Citation.] Standing alone, the past infliction of harm does not establish the substantial risk of future harm. Rather, ‘“[t]here must be some reason to believe the acts may continue in the future.”’ [Citation.]” (Ibid.; see also In re Alexander K. (1993) 14 Cal.App.4th 549, 557 (Alexander K.).)

Mother contends that the court failed to make a specific finding that either minor boy was suffering or at risk of suffering serious emotional harm. However, the court explicitly found that the section 300, subdivision (c) allegations in the petitions, expressly claiming that the boys were suffering emotional damage by the conduct of their parents, were true. Moreover, the court noted that “there’s emotional harm being placed on these children by the fact that disparaging remarks are being made in front of the children, which cause them a great deal of confusion in addition to the natural emotional harm that’s caused from the separation or divorce.” Furthermore, the court expressed that the “conflict that is going on between the parents . . . is also affecting [M.M.]. I think this is an emotional threat to her emotional well-being, as well . . . .” Thus, the court’s finding that the parents’ conduct was affecting the emotional well-being of M.M., someone who was not even the biological child of father, certainly supports, at the very least, an implicit determination that the emotional damage to the minor boys, who were the biological offspring of both parents, was that much more severe.

Contrary to mother’s assertion, this case went beyond the mere “bad mouthing” of each parent by the other in front of the minors. The initial emotional abuse allegations in the petitions were based on the physical abuse inflicted upon the minor boys, not on the parents’ disparaging remarks regarding one another. While the allegations were subsequently amended to base the emotional harm on the broader basis of the “conduct of the parents[,]” this did not eliminate the court’s ability to find the allegations substantiated by the physical abuse as well. Certainly the court’s finding that J.D. and M.D. had suffered physical harm by the placement of rubber bands on their penises would, in and of itself, support a finding that they had suffered or were at risk of suffering substantial emotional harm. The placement of rubber bands on one’s penis is not a run-of-the-mill physical abuse which might have limited or nonexistent emotional impact. Rather, the infliction of pain resulting in abrasions requiring medical treatment on a child’s genitalia on perhaps more than one occasion is the type of abuse which would generally be more akin with torture, an occurrence which would naturally have a more lasting emotional impact on the victim. Indeed, J.D. stated at one point that he continued to fear having a rubber band placed on his penis.

Moreover, the physical injuries appear to have been inflicted solely for the purpose of gaining advantage in the custody dispute between the parents, supporting the court’s determination that the risk of emotional harm to minors was a result of the conflict between the parents. While neither the court nor the department made any determination as to which parent inflicted the injury, much of the evidence suggests that mother could have done so as a tactical maneuver in her attempts to gain sole custody of the minor boys. Mother had brought the minor boys to the hospital on three occasions, alleging injuries inflicted intentionally by father. On the first occasion, medical personnel determined the injury was inconsistent with the report of abuse alleged by mother. They were also told by an adjoining patient that mother had been coaching minor what to say to the medical personnel. On the second occasion, medical personnel also indicated in the report that the injury did not appear to be the result of abuse. Likewise, J.D. initially indicated that mother had inflicted the injury. On the third occasion, both minors inculpated father; however, minors were later inconsistent with regard to whether the incident had occurred at all. M.D. was unable to give appropriate contextual details regarding the incident, severely impugning his credibility regarding the event. Likewise, M.D. was determined to be extremely suggestible regarding details of the incident. J.D. reported that his mother had promised him a toy if he blamed father. Notably, the record is completely devoid of any evidence of misbehavior by father other than the unsubstantiated allegations of the apparently “coached” minors and the decidedly interested mother.

Even to the extent that father could be deemed the perpetrator of the physical abuse, there was still evidence that it was committed as a stratagem in the impending custody dispute. J.D. had reported father had taken pictures of the boys’ penises with rubber bands on them in order to provide evidence that mother was responsible. Of course, this also is susceptible to the inference that mother told him to say this because merely the fact of father having pictures of the boys with rubber bands on their penises would incriminate father for the abuse; thus, it would be illogical for father to take such pictures to ensure that responsibility for the incident fell at mother’s feet because father would end up being held responsible for the acts. Finally, J.D.’s reports that “Cindy” was also involved in the physical abuse further underscores that the injuries directly related to the custody dispute. J.D. reported that “Cindy” was father’s girlfriend; however, father testified “Cindy” was the secretary of his former family law attorney, she was never his girlfriend, and she was in Colorado on the date of the abuse. This lends itself to the inference that mother saw “Cindy” during divorce/custody proceedings and automatically assumed she was involved with father. Thus, “Cindy” unwittingly became involved in mother’s machinations merely by virtue of her fleeting association with father. Therefore, the circumstances surrounding the physical abuse of the minor boys connect it directly with the custody dispute; hence, supporting the court’s determination that emotional harm or risk of such harm to the minors occurred as a result of physical manifestations of that dispute.

Finally, even aside from the physical abuse, sufficient evidence existed that minors were at a substantial risk of serious emotional harm as a result of mother’s “coaching” of minors and her openly hostile and disparaging conduct toward father. There was evidence mother coached the minor boys to blame father for several incidents of physical abuse he apparently was not responsible for. There was evidence mother had apparently instilled in J.D. the belief that father was a “banshee” who came from hell. Mother reported to the department two incidents in which father had made allegedly defamatory or sexually improper remarks to the children while on a supervised visit with them; however, the monitoring social workers reported that no such remarks had been made. It is rational to infer that mother discussed these alleged remarks with the children. Mother interfered with father’s visits with the children, even when supervised by the department. Father reported that minors told him mother informed them that he did not love them. Father believed that mother was brainwashing the minor boys against him. Mr. Fryberger testified, as an expert, that mother’s remarks about father to the children were causing them emotional damage. Mr. Fryberger essentially testified there was evidence that M.M. had lost her father due to similar behavior by mother before.

Hence, the evidence was more than sufficient to support the court’s determination that the minor boys were either suffering or at substantial risk of suffering serious emotional damage by virtue of the rancorous custody dispute between the parents. This case presents more solid evidence of emotional disturbance than was present in either Brison C., supra, 81 Cal.App.4th 1373 or Alexander K., supra, 14 Cal.App.4th 549, both cited by mother for the opposite proposition. In both Brison C. and Alexander K., allegations of physical abuse were deemed unfounded. (Brison C., supra, at p. 1375; Alexander K., supra, at p. 556.) Here, it is uncontested that physical and/or sexual abuse did occur as to both minor boys. In Brison C., both parents recognized the inappropriateness of their past behavior and expressed a willingness to change their behavior. (Brison C., supra, at p. 1381.) Here, neither parent has taken responsibility for the physical abuse and mother has never admitted the impropriety of her behavior. There is simply no evidence on this record that the physical abuse or the emotional manipulation will stop. Alexander K. found sufficient evidence of emotional disturbance, but no underlying conduct to account for that problem. (Alexander K., supra, at p. 560.) Here, the underlying acts are not in dispute, it is the result of those acts which forms the basis for mother’s disputations. We agree that the facts in the instant case do not approach the quantum of proof present in In re Shelley J. (1998) 68 Cal.App.4th 322; nevertheless, as noted above, we believe there was sufficient evidence to support the court’s determination that minors were at substantial risk of serious emotional harm. Continued exposure to mother’s doctrinarian views on father exposed minor boys to the very real possibility that they, like M.M., might ultimately lose their father, in effect if not in deed. The constant barrage of extreme accusations of physical abuse and fantastical mythologies, such as father being a “banshee,” regarding someone the minor boys loved as their father, obviously exposed them to serious emotional harm. The jurisdictional finding was, therefore, supported by substantial evidence.

B. Dispositional Finding as to M.M.

Section 361, subdivision (c)(1) provides that a child “may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . . [¶] . . . [that] there is . . . a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor [or would be] 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.” (In re Basilio T. (1992) 4 Cal.App.4th 155, 169-170, superseded by statute on other grounds as stated in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1249.) “‘When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact. [Citations.]’ [Citation.] [¶] When applying the substantial evidence test, however, we bear in mind the heightened burden of proof. [Citation.] ‘Under this burden of proof, “evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.” [Citation.]’ [Citation.]” (In re Alvin R. (2003) 108 Cal.App.4th 962, 971; see also In re Basilio T., supra, at p. 170; In re Henry V. (2004) 119 Cal.App.4th 522, 529.)

“[O]ut-of-home placement is not a proper means of hedging against the possibility of failed reunification efforts, or of securing parental cooperation with those efforts. It is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent. The law requires that a child remain in parental custody pending the resolution of dependency proceedings, despite the problems that led the court to take jurisdiction over the child, unless the court is clearly convinced that such a disposition would harm the child. The high standard of proof by which this finding must be made is an essential aspect of the presumptive, constitutional right of parents to care for their children.” (In re Henry V., supra, 119 Cal.App.4th at p. 525.)

Insufficient evidence supports the juvenile court’s dispositional determination that M.M.’s emotional well-being required removal from mother’s custody. When asked by mother’s counsel to give a factual basis for not returning M.M. to mother’s custody, the court responded: “[T]he factual basis is basically the same as to the other two [minors]. I think there is this conflict that is going on between the parents, between [father] and [mother], that is also affecting [M.M.]. I think this is an emotional threat to her emotional well-being, as well as—I’m not so concerned that it’s to her physical well-being, but more to her emotional well-being.” To some extent, the court’s finding is supported by Mr. Fryberger’s testimony and Dr. Suiter’s report. Mr. Fryberger admitted that M.M.’s situation was less clear-cut than that of the minor boys because she had neither been subjected to the physical nor emotional abuse. Nevertheless, he opined that M.M. was at risk of both. However, Mr. Fryberger gave no basis for his determination that M.M. was at risk of physical abuse by mother. If mother was, in fact, the individual responsible for the physical injuries to the minor boys, then her motivation behind that infliction was clear: she hoped to gain tactical advantage in her custody dispute with father by blaming him for the abuse. Inflicting physical injuries upon M.M. would not only not further those ambitions, but would likely impede them. Indeed, if M.M. started showing up at the hospital with injuries to her genitalia, it would effectively end the controversy over who was causing the injuries to the boys. This, in turn, would devastate her goal of gaining a custodial advantage over father with the boys. Moreover, Mr. Fryberger admitted there was no history of M.M. being injured in mother’s care.

The only basis given by Mr. Fryberger for potential emotional damage to M.M. from mother was the relational issues between mother and father. Indeed, Mr. Fryberger noted that the major issue in the case was the relational problems between mother and father regarding the minor boys. However, Mr. Fryberger admitted M.M. “is not the direct child of father.” Indeed, there is no evidence to suggest that M.M. had close ties with father during mother’s marriage to him, continued to visit with him, speak with him, or had any continuing relationship with him whatsoever. Therefore, the negative remarks made by mother regarding father would have had substantially less emotional impact upon M.M. than it did upon the minor boys. We agree that the situation is less than ideal; however, removal of custody is a drastic measure which the state is not permitted to exercise simply because the parents are imperfect. (In re Henry V., supra, 119 Cal.App.4th at pp. 530-531.) While Mr. Fryberger expressed that “there’s a lot of parroting going on and there’s a concern that if something did happen to [M.M.], would we get accurate information from that child, or would we get what she has heard from mother[,]” that concern was based on the potential of physical, not emotional, abuse to M.M. As discussed above, there is simply no evidence that M.M. was at any risk of physical abuse by mother. Moreover, there is always a concern that children will not accurately report the indiscretions of their parents, regardless of the type of parent. The dependency process exists to protect children from abuse, not to ensure that they are accurate informers of their parents’ transgressions.

Dr. Suiter noted that “[M.M.] was quite negative in her descriptions of [father]. . . . her descriptions were so extreme in terms of her criticisms of him and her assertions of his physical disciplining of her that her reports were not credible.” Dr. Suiter indicated that “[t]his is a pattern reflective of a ‘Hilter and Snow White’ mentality which reflects her mother’s negative view of [father] rather than her own view of him.” Nevertheless, Dr. Suiter, while discussing the emotional harm to the boys, never stated that mother posed any emotional harm to M.M. by virtue of her disparagement of father. And while he did recommend continued joint custody of the minor boys between mother and father, he made no recommendation relative to M.M. Thus, if Dr. Suiter, the only psychologist to examine the parties, felt that the minor boys would continue to be emotionally safe in mother’s custody, it goes without saying that M.M. would, likewise, be safe.

Here, Dr. Suiter noted that M.M. “views her mother favorably and feels well cared for by her mother.” Dr. Suiter determined that neither parent posed a danger to the children. Mr. Fryberger noted that M.M. stated that she would prefer to live with mother. M.M.’s father approved of her placement with mother. There was simply insufficient evidence that M.M.’s continued custody with mother posed a substantial danger to her physical health, safety, protection, or physical or emotional well-being. M.M., nine years old at the time of the hearing, had apparently spent her entire life in mother’s custody. Removing her from that care, in which she apparently felt secure, posed more danger to M.M.’s emotional well-being than remaining in mother’s admittedly less than perfect charge.

III. DISPOSITION

The judgment is affirmed in part and reversed in part.

We concur: McKinster, Acting P.J., Miller, J.


Summaries of

In re M.M.

California Court of Appeals, Fourth District, Second Division
Sep 9, 2008
No. E045230 (Cal. Ct. App. Sep. 9, 2008)
Case details for

In re M.M.

Case Details

Full title:In re M.M. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Sep 9, 2008

Citations

No. E045230 (Cal. Ct. App. Sep. 9, 2008)