Opinion
B302893
02-04-2021
In re D.C., JR., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.M., Defendant and Respondent, D.C., JR., Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Appellant. No Appearance for Plaintiff and Respondent. Sherman & Fung and Kenneth P. Sherman for Defendant and Respondent L.M.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP01972) APPEAL from an order of the Superior Court of Los Angeles County, Steff Padilla, Judge Pro Tempore. Affirmed. Jesse McGowan, under appointment by the Court of Appeal, for Appellant. No Appearance for Plaintiff and Respondent. Sherman & Fung and Kenneth P. Sherman for Defendant and Respondent L.M.
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The juvenile court asserted jurisdiction over 15-year-old D.C., Jr. (D.C.), based on a finding that he had suffered emotional abuse as a result of a high conflict custody dispute between his parents. No party challenges the jurisdictional order.
D.C. appeals from the juvenile court's December 5, 2019, dispositional order removing him from the home of his father, D.C., Sr. (Father) and placing him with his maternal aunt. At the dispositional hearing, the Department of Child and Family Services (DCFS) recommended that D.C. remain with Father, although it noted it had serious concerns about D.C.'s well-being in Father's care. Accordingly, DCFS advised this court it did not intend to file a respondent's brief. We granted a motion by L.M. (Mother) to be designated as the respondent. Father is not participating in the appeal.
D.C. argues substantial evidence did not support the juvenile court's finding under Welfare and Institutions Code section 361, subdivision (c)(1), that there was or would be a substantial danger to D.C.'s emotional well-being if he remained in Father's care, and that he could not be protected absent removal. D.C. views his removal from Father solely as an attempt by the juvenile court to repair his relationship with Mother, from whom D.C. became estranged over the course of the juvenile court proceedings. Thus, D.C. argues, the juvenile court exceeded its authority under section 361 in removing him from Father's home.
All unspecified statutory references are to the Welfare and Institutions Code.
We conclude substantial evidence exists from which a reasonable fact finder could have found it highly probable that D.C. faced substantial danger to his emotional well-being if he remained in Father's care, and there was no reasonable means to protect his well-being without removal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of D.C.'s Custody Prior to the Referral to DCFS
D.C. was born in 2005 when Mother was 18 years old and Father was 19 years old. Mother and Father did not marry.
When D.C. was three years old, Father, an admitted gang member, was convicted of armed robbery and incarcerated for four years. Mother and Father ended their relationship. During Father's incarceration, either Mother or a paternal aunt took D.C. to visit Father in prison.
Mother earned a degree and pursued a career in radio broadcasting. At times, Mother worked two jobs and was away from home to attend work events. Family members sometimes picked up D.C. from school or babysat him.
In August 2013, Father was released from prison, and disavowed his life as a gang member. In 2013, Father was awarded visitation with D.C. three times a week for six hours per day. This arrangement lasted until sometime in 2017.
In 2015, Mother married J.P. (Stepfather), with whom she had a son in December 2017. Mother gave birth to D.C.'s second half-brother in April 2019, during the pendency of the juvenile court proceedings. At the time of the proceedings, maternal grandfather also lived with the family.
In August 2017, Father married M.I. (Stepmother). Over the course of their marriage, Father and Stepmother worked from home as real estate investors, although Father testified at the dispositional hearing that they had not yet invested in any property. Stepmother had adult daughters, but no children lived with them.
In 2017, Father and Mother agreed in mediation that D.C. would reside with Father every Thursday evening to Monday morning and with Mother from after school every Monday through Thursday morning. The parents had joint legal custody of D.C.
In January 2018, Father filed a petition in family court in which he sought increased parenting time. Shortly after the proceedings were initiated, Father agreed to pay for a 730 custody evaluation pursuant to Evidence Code section 730 (730 evaluation). However, Mother and Father could not agree on an evaluator. In November 2018, the family court selected a custody evaluator and required the parties to sign a stipulation relating to the evaluation. Father delayed signing the stipulation, believing Mother had coached D.C. to lie to any evaluator selected.
Except for a copy of the docket, records from the family court proceedings are not included in the appellate record. The facts relating to the custody arrangements and the family court 730 evaluation are drawn from the testimony of the parties.
In the summer of 2018, 13-year-old D.C. asked his parents to meet at Starbucks to discuss the parenting plan. During this meeting, D.C. announced that he wanted Father to have "primary custody" of him. When Mother asked D.C. what he thought "primary custody" meant, D.C. responded that it meant he could have more opportunities with Father, and Father could do more with him at school.
In January 2019, D.C. asked Mother to stop pursuing the 730 evaluation because it would be a burden to Father. Mother instead sought the family court's assistance to move forward with the evaluation.
B. The Valentine's Day Slap
On the morning of February 14, 2019, D.C. could not find his backpack and sought to remain home from school. Mother explained to D.C. that his lost backpack was not a sufficient reason to stay home and lent him a backpack. D.C. was upset and took a long time to get ready. While Mother waited in her car to take him to school, D.C. threw his backpack into the car. Mother slapped D.C. in the face.
The following day, Father took D.C. to the police station to report the slap. During the juvenile court proceedings, Father testified an attorney told Father that he must report the slap to the authorities or the attorney would. However, Father could not recall the name of the attorney who gave him this advice. D.C. told the police he was not afraid to return to Mother's care.
A referral to DCFS was generated as a result of the slap.
C. Summary of DCFS's Investigation
1. The Slap
On February 22, 2019, Mother admitted to a DCFS social worker that she acted out of frustration in slapping D.C. However, she denied that she hit D.C. hard, noting that she was pregnant and sitting in the driver's seat, limiting her range of movement. Mother said the contact was more like a pushing away of D.C.'s face. Mother acknowledged she and Father were having a difficult time co-parenting. She described Father as controlling and manipulative. She believed he was enmeshing D.C. in their custody dispute.
On February 26, 2019, D.C. described the slap to social workers as "not a full-on slap, just a small one." D.C. stated that Mother hit him on multiple occasions, although it was determined that this meant twice. D.C. also stated that he was not afraid of Mother.
On March 14, 2019, Father told social workers that Mother hit D.C. on three different occasions, but he could not provide any details about those incidents. Father also reported that D.C. was afraid of Mother, Mother interrogated D.C. about the time he spent with Father, and she made D.C. feel guilty for having gone to the police to report the slap.
The social workers interviewed D.C. again on March 18, April 4, and April 5, 2019. D.C. stated that since "everything came out," Mother caused him to feel guilty by crying in front of him and telling him that she could go to jail. D.C. reported he was scared to be around Mother. He did not tell the social workers this when they first spoke with him because he was afraid of what Mother would say when she found out. Later, D.C. said Mother's anger and bitterness increased over time, making him more frightened of her. D.C. also suggested the presence of the newborn baby made everything at Mother's home more stressful and caused Mother to have less time for him.
2. Cell Phone Hacking and Theft
During the March 14, 2019, interview, Father also informed the social workers that Mother was facing legal trouble for using D.C. to help her hack Father's and Stepmother's smart phones. Father stated he had documentation from Apple to prove the hacking and suggested that minor's counsel had been appointed for D.C. because Mother was trying to blame D.C. for it.
D.C. confirmed that beginning two and a half years prior to the juvenile proceedings, Mother regularly made him participate in accessing Father's and Stepmother's phones. To do so, D.C. would log out of Father's and Stepmother's email accounts, iCloud accounts, and Apple IDs on their devices, and log back into email, iCloud, and Apple using his email account, to which Mother had access. D.C. would telephone Mother to let her know this was done. Between five to 15 minutes later, Mother would call D.C. back to tell him he could log back out of the accounts. D.C. stated he did not know what he was helping Mother do until Father and Stepmother "showed me what I was doing and how all their information got stolen." D.C. explained these actions hurt Father and Stepmother, made them angry, and caused them to yell at him.
Stepmother appeared agitated during her interview with the social workers. After asking permission from Father to discuss certain matters, Stepmother claimed Mother used information that Mother obtained from hacking their phones to steal $2,000 from Stepmother's mother. Stepmother also stated that Mother psychologically manipulated D.C. and made him feel guilty; that Mother did not provide for D.C.'s basic needs and refused to let D.C. wear clothes that Father and Stepmother bought for him; and Mother shared all information relating to the custody battle with D.C. Stepmother did not believe that D.C. was safe with Mother.
Mother denied that there was any truth to the phone cloning or theft allegations. She explained that she had been advised by Apple employees and by the police that there was no investigation into the matter. As for making D.C. feel guilty, she conceded that she told D.C. that words have power and that lies can lead to real world consequences. She believed Father was emotionally coercing D.C. to lie.
D. DCFS Alleges Mother Emotionally Abused D.C.
On March 26, 2019, D.C. was removed from Mother's home and placed with Father. In its March 28, 2019, juvenile dependency petition, DCFS alleged that Mother emotionally abused D.C. within the meaning of section 300, subdivision (c), by involving him in the custody dispute; making false allegations against Father; causing D.C. to assist her in merging data from Father's and Stepmother's cell phones to Mother's devices; and verbally threatening D.C. DCFS further alleged Mother's emotional abuse placed D.C. at substantial risk of suffering serious emotional damage as evidenced by severe anxiety, depression, withdrawal, and aggressive behavior.
On March 29, 2019, the juvenile court found DCFS demonstrated a prima facie case, and ordered D.C. detained from Mother and placed with Father pending the next hearing.
E. The Jurisdictional Hearing
Over the course of 10 court days during April, May, and June 2019, the juvenile court heard testimony from D.C., Mother, Father, Stepmother, and Mother's expert in forensic cell phone analysis. The testimony indisputably demonstrated that D.C. was suffering from distress as a result of both parents involving him in a bitter custody dispute. Evidence concerning Mother's visitation with D.C., cell-phone hacking, and theft was presented to the juvenile court during the jurisdictional hearing. We briefly discuss each allegation below.
1. Visitation
Following the first day of testimony, on April 12, 2019, the juvenile court ordered monitored visitation between D.C. and Mother at a neutral location. Except for two occasions, each time D.C. was taken to visit Mother, he refused to exit the car. On one occasion, D.C. told Mother he did not want to speak with her and walked back to the car before she could reply. On a second occasion, D.C. told Mother he hated her. Throughout the proceedings, D.C. maintained he did not want to see Mother, in part, because she caused him to hack into Father's and Stepmother's phones.
2. Allegations of Cell Phone Hacking
The forensic cell phone expert, Thomas Plunkett, testified that unless Mother engaged in sophisticated hacking, Mother would not have been able to access text messages or emails stored on Father's or Stepmother's cell phones without their Apple IDs and passwords. D.C. testified he did not know the passwords for Father's or Stepmother's accounts. Plunkett's testimony suggested Mother could have accessed photographs from Father's and Stepfather's phones through their iCloud storage accounts. Further, Plunkett acknowledged that records from Apple showed a single attempted backup to the iCloud account from Stepmother's device in February 2018. However, Plunkett testified this attempted backup was abandoned and there was no suggestion that Mother or D.C. initiated the backup. Plunkett explained that downloading photographs from iCloud usually takes longer than five to 15 minutes and that Apple would have had records of each backup. Upon reviewing the documents that Father submitted as evidence of hacking, Plunkett concluded he had no concerns that hacking had occurred.
3. Allegations of Theft
Father and Stepmother testified that they believed Mother used information she obtained from their devices to steal money from Stepmother's mother's bank account. Mother denied the theft, and neither Father nor Stepmother presented any evidence or testimony demonstrating that Mother or D.C. had any involvement in the theft.
F. Jurisdictional Findings
On June 5, 2019, the juvenile court issued its jurisdictional findings. The court determined D.C. was a sensitive, loving and introverted child who was suffering from severe psychological damage as a result of Mother and Father embroiling him in the custody dispute and failing to communicate with one another. In this regard, the juvenile court found it particularly compelling that because the parents could not agree to a therapist for D.C., they sent him to two different therapists. Each parent sought to control the other through D.C. Further, the juvenile court observed that throughout the jurisdictional proceedings, Father exhibited a lack of insight by denying that he had done anything wrong. For her part, Mother did not acknowledge her actions contributed to D.C.'s distress until the close of the proceedings.
The juvenile court ordered the jurisdictional allegations amended to conform to proof and found as follows: "The child's Mother and Father emotionally abused the child by engaging in a child custody dispute . . . . On prior occasions, the Mother and Father's false allegations towards each other have caused the child severe emotional distress causing the child to feel guilty. The child exhibits emotional distress due to Mother and Father's emotional abuse of the child. The child does not wish to reside with Mother due to the parents' conduct. Such emotional abuse of the child by the parents places the child at substantial risk of suffering serious emotional damage as evidence[d] by severe anxiety, depression, and withdrawal."
The juvenile court concluded Mother asked D.C. for information about Father, but that in the age of social media, hacking the cell phones would be unnecessary. The court struck the hacking allegations as well as the allegations that Mother verbally threatened D.C., and that D.C. exhibited aggressive behavior. As to the allegations that Mother stole from Stepmother's mother, the juvenile court observed, "[t]here's absolutely no evidence that Mother or [D.C.] took one dime from [Stepmother]'s mother's account. To [perpetuate] that with no evidence, I think it's adding to the distress."
Later, during the dispositional hearing, the juvenile court stated it specifically found the hacking allegations were not true.
During the dispositional hearing, Father revealed that his sister, K.R., had stolen some items, including purses, from his home. The juvenile court expressed concern that Father knew his sister had stolen items from his home, but still chose to accuse Mother of the theft from Stepmother's mother's account without any evidence.
On June 7, 2019, the juvenile court ordered DCFS to provide individual counseling to Mother, Father, and D.C., and conjoint counseling for Mother and D.C. The juvenile court found that Father used D.C. in an attempt to convince Mother to terminate the 730 evaluation in family court. Accordingly, the juvenile court ordered a 730 evaluation to be conducted by Dr. Sheila Morris.
D.C. does not challenge the jurisdictional findings on appeal.
G. Summary of Key Events After the Issuance of Jurisdictional Findings and Before the Dispositional Hearing
1. 730 Evaluation
Dr. Morris met with Mother, Father, and D.C. on July 5, 2019, and again on August 7, 2019. Dr. Morris submitted a 730 evaluation to DCFS on August 14, 2019. According to the 730 evaluation, D.C. is easily suggestible, highly impressionable, and socially underdeveloped. He appeared to mimic and parrot Father's sentiments, and lacked age-appropriate insight, as evidenced by making absolute statements and placing blame solely on Mother.
As to alienation, Dr. Morris concluded, "it is clear that child alienation has occurred. This issue is complex and not a simple matter of one parent coaching the child against the other . . . . [D.C.] has become alienated from [Mother] due to attitudes, beliefs, and behaviors of the aligned parent, [Father]; as well as the attitude, beliefs, and behaviors of the rejected parent, [Mother]. . . . To reiterate, [D.C.] is highly impressionable, so when he hears derogatory information about [Mother], he has the tendency to internalize the information without the ability to critically judge its legitimacy. And the information serves as further proof to him that [Mother] is against him, does not love him, and is intentionally harming him, and lying."
Dr. Morris also noted that Father continued to be adamant that Mother made D.C. hack Father's and Stepmother's cell phones, notwithstanding the juvenile court's order striking that allegation.
2. D.C.'s Suicidal Instagram Post
Between the first and second meeting with Dr. Morris, on or about July 15, 2019, D.C. posted on Instagram that "[I] also took 2 sleeping pills and [I] hope [I] overdose," which generated a referral to DCFS. According to the referral, D.C. said a paternal aunt, K.R., told D.C. that Mother would kill herself unless D.C. returned home, and that the best way to accomplish that was for D.C. to post on social media that he was going to kill himself. D.C. also told the social worker that he made up the story about taking the pills, that he did not know why he did it, and that he was scared. The social worker found D.C.'s explanation to be "elaborate and bizarre." Father reported D.C. deleted his Instagram account after the incident.
K.R., who does not maintain a relationship with Father, denied that she contacted D.C. and stated that she would not say such things to a child. During the dispositional hearing, social worker Brianna Miller testified that she believed K.R.'s denials.
During Dr. Morris's second interview, Father advised Dr. Morris that D.C. first told him the Instagram post was a joke. Father told D.C. that he could be taken away to foster care because of the post. D.C. also advised Dr. Morris that Mother was trying to send him to foster care.
3. Sexual Abuse Allegations
On July 16, 2019, a referral alleging sexual abuse of D.C. by his maternal stepgrandfather during the years 2013 to 2015 was generated. According to the referral, D.C. alleged he slept in the same bed with Mother, maternal grandmother, and maternal stepgrandfather. D.C. claimed that maternal stepgrandfather digitally penetrated D.C.'s anus "multiple times, all the time" as they slept next to each other and when they watched television on the couch. D.C. also claimed maternal stepgrandfather touched D.C.'s penis, penetrated D.C.'s anus with his penis, and entered the shower with D.C. D.C. said he never told anyone about the sexual abuse because he was afraid Mother would not believe him.
After investigating these allegations, the social worker questioned their veracity. DCFS did not file a supplemental petition citing the allegations.
At the dispositional hearing, Dr. Morris testified that she had some concerns about the validity of D.C.'s sexual abuse allegations, but she had not made a determination that they were unfounded.
4. D.C.'s Therapy
In May 2019, Father enrolled D.C. in therapy with marriage and family therapist Robin Walker. On August 6, 2019, Walker reported by letter to DCFS that D.C. was referred to him because there was some worry about D.C. getting through a court battle between his parents "unscathed." Walker reported D.C. seemed "emotionally underdeveloped," had few friends, "g[ave] off a feeling of loneliness," and "[could] not say 'no' to anyone in his life." Further, Walker believed D.C. was "in danger of becoming depressed. He [was] on the border of hopelessness and . . . developed feelings of helplessness—both markers of depression."
In a subsequent report, Walker reported that D.C. was improving, but his emotional health remained fragile. He observed that D.C. "easily internalizes the moods and feelings of others," and believes bad things are his fault. Walker stated D.C. revealed sexual abuse allegations to him, which Walker believed.
5. Father Relocates and Enrolls D.C. in a Unilaterally Selected High School
On or about August 19, 2019, Father moved to a leased residence in Westlake Village. Shortly thereafter, Father contacted DCFS social worker Monica Lovato, contending Mother and Stepfather were making inquiries of Father's landlord about Father's new residence. As Father encouraged Lovato to raise the issue with the juvenile court, Lovato overheard Stepmother state, " 'I want her to be restricted. Tie her fricking hands.' " Contrary to the juvenile court's order to enroll D.C. in a local Calabasas high school, Father enrolled D.C. in Westlake High School, located in Ventura County, California.
H. Dispositional Hearing
The dispositional hearing lasted nine court days throughout the months of September to December 2019. The juvenile court heard testimony from Dr. Morris (the 730 evaluator), Miller and Lovato (DCFS social workers), Mother, Mother's alienation expert Dr. Jeffrey Arden, D.C.'s alienation expert Dr. Lyn Greenberg, Walker (D.C.'s therapist), Father, and a paternal aunt, E.V. We summarize testimony relevant to our opinion below.
1. Dr. Morris's Testimony
Dr. Morris opined that D.C. was exposed to the custody conflict between his parents, and he did not have the developmental, cognitive, or emotional maturity to deal with the ongoing conflict. As a result, D.C. was anxious, distressed, and depressed. Although both parents involved D.C. in the custody battle in the past, Dr. Morris noted that D.C. had not lived with, or had contact with, Mother for several months. Accordingly, Dr. Morris believed D.C. continued to be exposed to the custody dispute in Father's home, and D.C.'s feelings toward Mother resulted, in part, from Father's alienation. Dr. Morris opined that the long-term prognosis of such alienation would be delinquency, depression, and anxiety, and that continuing to reside with an alienating parent would not help D.C. to heal.
Dr. Morris testified that Mother alienated herself from D.C. "by not being there all the time. She admittedly worked a lot. She left [D.C.] at home a lot with her parents, and you know, she was trying to make a better way for herself and [D.C.] and make a better life. So she was gone a lot."
However, Dr. Morris also stated that placing D.C. back with Mother would be devastating to D.C. because it was not what D.C. wanted and thus, would encourage him to have feelings of helplessness. Although Dr. Morris opined Mother had improved her ability to interact with D.C., she also believed that if D.C. were placed with Mother without being able to interact with Father, D.C. could act out to such a degree as to require hospitalization. Further, Dr. Morris stated it was difficult to discern what was happening in Mother's home because D.C. mimicked Father's beliefs, had absolutely nothing positive to say about Mother, and appeared to be revising his past with Mother. Dr. Morris observed that Father was not self-reflective, and D.C. likely would emulate this behavior.
At the time of her report, Dr. Morris could not determine whether Father's efforts to alienate D.C. were intentional. However, Dr. Morris did not foreclose the possibility that Father was intentionally alienating D.C. She observed that Father was not "on board" with D.C. increasing his interactions with Mother; that it was unusual for a 13-year-old to be so easily influenced against one parent; and that in permitting D.C. to call Stepmother "mom," Father was enabling D.C. to replace Mother with Stepmother. Dr. Morris opined that if the alienation was intentional, then D.C. should be removed from Father.
2. October 3, 2019, Last Minute Information (LMI)
DCFS also submitted an LMI to the juvenile court on October 24, 2019. The second LMI was not included in the appellate record.
a. Reunification Therapy
On September 25, 2019, social worker Miller contacted Father to discuss reunification therapy between D.C. and Mother. During the discussion, Father denied that Dr. Morris concluded alienation had occurred, noting Dr. Morris's need for further interviews. Father also stated he felt the focus of the dependency proceedings should be to help D.C. heal from the sexual abuse and thus, Mother should "drop the case." Miller advised Father that further investigation into the sexual abuse allegations would be handled by law enforcement. DCFS did not intend to file "failure to protect" allegations against Mother because D.C. confirmed that "[M]other was not aware of the abuse. . . . [D.C.] . . . never spoke to [Mother] about it and it never occurred while she was in the home . . . ." When advised that the reunification therapy would be between Mother and D.C., Father stated that D.C. would refuse to be in a room with Mother. Furthermore, Father did not like the therapist Mother's attorney had recommended for the therapy, and did not want the therapy to interfere with D.C.'s extracurricular activities.
The following day, Father sent an email to DCFS expressing frustration that it would not file failure to protect allegations against Mother. He questioned why Miller would not interview D.C. about the sexual abuse allegations again; why the sexual abuse allegations were not more of a priority; how the juvenile court could "overlook" the sexual abuse allegations in favor of reunification while D.C. was trying to cope with the abuse; and why further action was not being taken against Mother and Father's sister, K.R.
b. The Forensic Interview and Further Sexual Abuse Allegations
On September 27, 2019, D.C. completed a forensic interview relating to the sexual abuse allegations. A video and a transcript of the interview were provided to the parties. Although the appellate record does not include the video or transcript, based on other documents in the record, D.C.'s descriptions of the alleged sexual abuse intensified. In addition to his previous allegations, D.C. stated that his stepgrandfather masturbated him at the dinner table while Mother and maternal grandmother were present. He claimed his stepgrandfather penetrated D.C.'s anus using a dildo, a carrot, a cucumber, and his fingers and penis, causing D.C. extreme pain and anal bleeding. D.C. also stated that stepgrandfather used duct tape to cover D.C.'s mouth to prevent him from screaming.
c. LMI Assessment
In the LMI, DCFS concluded that, "[d]uring the six months of [c]ourt and [DCFS] supervision, there have been a number of events that raise concerns regarding the actual safety and well-being of [D.C.] in his father's care. . . . [¶] During this time, [Mother] has reportedly participated in individual counseling consistently. [Father] reportedly enrolled in individual counseling and attended his initial session on [September 12, 2019]. . . . When [the DCFS investigator] discussed the conclusion of parental alienation with [Father] he became defensive and indicated the 730 evaluator expressed the need for further interviews," and Father did not make parental reunification therapy a priority.
3. Mother's Expert, Dr. Jeffrey Arden
Dr. Jeffrey Arden testified as an expert in parental alienation. According to Dr. Arden, alienating behavior by a parent may occur when a child hears one parent making disparaging remarks about the other and internalizes them. He opined that a child's unjustifiably negative attitude towards one parent is a cardinal symptom of alienation. Other symptoms include a child revising his history with an alienated parent, and using the same language as the alienating parent.
Dr. Arden opined that alienation is psychologically damaging to a child and that psychological symptoms of alienation include anxiety, depression, phobia, low self-esteem, difficulty concentrating, and feelings of guilt. One solution to alienation is to place a child in the home of the alienated parent for two to three months while the family members participate in intensive therapy. A different solution is to place the child in the home of a relative, with no contact with the alienating parent for two months. Dr. Arden acknowledged such solutions may be difficult for the child, but stated that the short-term consequences generally are worth it.
4. Minor's Expert, Dr. Lyn Greenberg
Dr. Lyn Greenberg testified as an expert in high conflict and parental alienation issues. According to Dr. Greenberg, alienation, which she termed "parental undermining," occurs when a parental conflict takes the form of undermining the child's relationship with the other parent. When a child is subject to severe undermining, the child is unable to cope effectively or resolve issues in relationships. Further, if the child's memories or perceptions are manipulated as part of the alienation, the child begins to lose touch with the difference between their own feelings and the feelings of the adult, which can leave the child severely impaired in forming other relationships as they get older. An older than preschool-age child who cannot understand that relationships are complex and that no one is perfect, and who sees things in all-or-nothing terms raises concerns of alienation by one parent, and that the child is taking emotional responsibility for the alienating parent. This hinders the child from discussing his true experiences. Dr. Greenberg also observed that a child is unlikely to develop a hostile narrative toward one parent independently, and that even abused children want to interact with the abusive parent.
Although Dr. Greenberg could not offer a specific recommendation because she did not meet with the family, the juvenile court permitted testimony from Dr. Greenberg based upon her review of documents and the video of the forensic interview. Dr. Greenberg opined these materials caused her concern about the need for psychological intervention, as well as concern that there was "undermining or actual influence impacting" D.C. Further, Dr. Greenberg testified that she reviewed correspondence from D.C.'s therapist, Walker, and was concerned that Walker seemed to be engaging with Father to the exclusion of Mother and drawing conclusions based on those interactions.
Dr. Morris also indicated she had some concern that Walker was not sufficiently aware of D.C.'s issues with Mother or helping him with those issues.
Finally, Dr. Greenberg testified that of greatest concern to her was D.C.'s statement during the forensic interview that he knew his Mother did not love him because she did not believe his allegations of sexual abuse. The 730 evaluation did not include such a statement by Mother, and Mother and D.C. had not had a conversation for several months. Accordingly, Dr. Greenberg concluded some other adult must have told D.C. that Mother did not believe his sexual abuse allegations.
5. Testimony of Social Workers Miller and Lovato
DCFS social worker Miller testified that if the sexual abuse allegations had not been made, DCFS would have recommended removal from Father and placement with Mother. However, some of D.C.'s statements during the forensic interview caused Miller to question whether Mother was aware of the sexual abuse. Accordingly, DCFS did not recommend removal from Father. Miller nonetheless acknowledged that DCFS had some skepticism about the veracity of D.C.'s statements in the forensic interview.
Miller also believed there was a danger to D.C.'s emotional well-being if he remained with Father as a result of Father's alienation. She noted that Father did not cooperate with DCFS, and that his reasons for not participating in the case plan services, such as therapy, were a moving target.
DCFS social worker Lovato testified she had serious concerns about D.C. staying with Father. She believed Father was coaching D.C. what to say with respect to the sexual abuse allegations, but could not articulate why she believed this, other than to point to the timing of the allegations.
On November 19, 2019, the district attorney rejected D.C.'s case for sexual abuse for lack of sufficient evidence.
6. Walker's Testimony
D.C.'s therapist, Walker, testified that Father enrolled D.C. in therapy to ensure D.C. had a place to discuss his feelings about the legal proceedings and to assist D.C. in developing more confidence. Although Walker understood from both Father and D.C. that the legal proceedings were combative, he could not remember if Father told him there was an ongoing custody dispute or that D.C. refused to see Mother. Father did not tell Walker that the family was in juvenile court or that there was a concern raised about alienation by Father. Although Walker eventually became aware that alienation was an issue in the case, he wanted to address other issues first with D.C. Walker did not speak with Mother at any time during D.C.'s treatment.
Over the course of Walker's six months of treatment with D.C., D.C.'s emotional development and his sense of security and stability improved. Walker acknowledged, however, that D.C. would "sacrifice himself emotionally for the betterment of others."
Walker testified that Father initially informed him on July 16, 2019 (the day after the Instagram post) that D.C. had been sexually abused. When asked if the information D.C. and Father provided about the sexual abuse allegations was "exactly the same," Walker responded that D.C. and Father described the same events, but did not use the same words to describe what had occurred. When the juvenile court questioned Walker about his treatment note that, "[D.C.] reported he couldn't remember whether or not the acts had taken place," Walker explained that it is typical of children who reveal sexual molestation to doubt themselves.
According to Walker's treatment notes, on September 25, 2019, D.C. "revealed further details of the molestation" and was "very interested in recounting his story." During that session, D.C. stated that his Mother and maternal grandmother knew about the sexual abuse.
This was the same day that Miller told Father that DCFS would not file failure to protect allegations against Mother concerning the alleged sexual abuse.
Walker also testified that on July 20, 2019, four days after Father revealed the sexual abuse to Walker, Stepmother spoke with Walker about wanting to divorce Father.
This revelation became relevant to the juvenile court's dispositional findings.
7. Mother's Testimony
Although Mother originally informed DCFS that she wanted to believe D.C.'s sexual abuse allegations, at the time of the dispositional hearing, she did not believe the allegations. Although there was a time when Mother and D.C. lived in the same house as her mother and stepfather, Mother could not recall a time when D.C. slept in a bed with her stepfather.
Mother presented other evidence and testimony that contradicted D.C.'s sexual abuse allegations. For example, Mother presented a photograph of the dining table at her mother and stepfather's home, which had a table-top made of glass, and testified she could not understand how her stepfather could have molested D.C. at that table. She also testified that she never saw any marks on D.C.'s face that could have been left by duct tape; nor did she ever find any blood or non-fecal bodily fluids in his underclothing.
Mother revealed that Father limited her movements and communications with family and friends when they were dating. She claimed she could not leave the house without Father or one of his family members accompanying her. She also testified that Father took the battery for her cell phone; limited what she ate after she gave birth to D.C. so that she would lose weight; called her "peasant"; and limited her ability to see her friends and family, including on the day her grandmother passed away. Mother believed Father's controlling attitude could lead to his alienating D.C. from her.
Finally, Mother testified that during a scheduled visit with D.C. on October 22, 2019, D.C. approached her only to tell her that he hated her.
8. Father's Testimony
Father denied he did any of the controlling things Mother had described. Father testified that he encouraged D.C. to have a relationship with Mother, and tried to create incentives for him to visit by taking away electronics when D.C. failed to do so. Father did not attend therapy because he did not like any of the potential therapists. Father reported that he and Stepmother were doing well since the date in July when she spoke with Walker about getting a divorce. However, this testimony was impeached by the presentation of divorce papers filed by Stepmother on October 2, 2019.
Father's testimony was scheduled to resume on November 26, 2019. On November 22, 2019, DCFS received a communication from Father's therapist that she wanted to retract her prior written statement indicating Father was in therapy. The therapist advised that Father had cancelled or failed to attend scheduled sessions three times despite her efforts to accommodate him. She noted that most recently, Father canceled his November 22, 2019, therapy appointment, telling her he would be in court. When Father resumed his testimony on November 26, 2019, he was asked why he advised his therapist he had to miss therapy on November 22nd for court, when there were no juvenile proceedings scheduled for that day. Father responded that he skipped the therapy appointment to accompany Stepmother to family court to assist her in filing a dismissal of the divorce petition. He did not have an adequate explanation as to why he could not attend therapy and accompany Stepmother to file court papers on the same day.
I. The Juvenile Court's Dispositional Ruling
On December 5, 2019, the juvenile court ordered that D.C. be removed from the care, custody, and control of both Mother and Father and placed with a maternal aunt.
Before issuing its ruling, the juvenile court observed Father's testimony was "incredible." The juvenile court commented that Father engaged in obfuscation, did not answer direct questions, and did not understand that veracity was important to the court. The court further observed that Father failed to take responsibility for his actions and instead blamed everyone else, including Mother, D.C., and DCFS.
As to the merits, the juvenile court found D.C. exhibited classic symptoms of alienation: being isolated, believing nothing good about Mother, and believing Father is a hero. The court found Father engaged in active alienation of D.C. from Mother. Specifically, Father initially alleged that Mother used D.C. to hack the cell phones and that Mother stole from them. However, there was no evidence to support either of these allegations. Then an allegation surfaced that Mother and the paternal aunt told D.C. that Mother would kill herself unless D.C. posted on social media that he was going to kill himself. The juvenile court observed there was no evidence to substantiate those allegations. Rather, "[t]his was a ploy to blame Mother. The first two didn't work [referring to the theft and hacking allegations]. That one didn't work either [referring to the suicide posting] because I don't believe Mother ever said she would kill herself if the child didn't come home. It was a way, a mechanism, and it's the same pattern. [D.C.] being asked to do something by Mother, but it's really the Father that's behind it."
The juvenile court continued: "One of the final desperate moves of an alienating parent is allegations of abuse, sex abuse no less. And sure enough the using of the phone doesn't work. The stealing of the property doesn't work. So we go to sex abuse because the court is considering removing from dad because it's not going well in the courtroom. The D.A.'s office is not choosing to proceed. [DCFS] never filed a petition even after the forensic—even after the forensic [interview] because it's not there." (Italics added.)
Notably, as to the effect on D.C., the juvenile court acknowledged that it believed that D.C. believed he had been sexually abused. The court found it telling that D.C. stated during the forensic interview that Mother did not believe his allegations of sexual abuse, when Mother had had no contact with D.C. Thus, the juvenile court concluded that "[o]nce again, Father is behind all of that."
The juvenile court observed that Father's antisocial behaviors caused it grave concern about D.C.'s safety in Father's home. "Father doesn't tell the truth, scams people, [and] uses his child to get back at . . . Mother." "Father is into control and isolation. The court believes Mother's testimony that he isolated Mother and he controlled her. [¶] I believe also that that little trip to [family court] which was a lie to [Father's] therapist was to ensure [Stepmother] did what [Father] wanted. If [Father] trusted her . . . , [he] would have let her go to [family court] to dismiss the marital petition. . . . So the issues of control come back to Mother, [Stepmother], and to [D.C.]."
The juvenile court concluded that Father engaged in massive psychological manipulation of D.C. and that D.C. suffered psychological damage. The juvenile court also found "beyond a reasonable doubt that there has been active alienation by Father" and that "behind the scenes . . . [Father has] done everything he could to sabotage the relationship between the Mother and her son."
The juvenile court removed D.C. from Father and Mother pursuant to section 361, subdivisions (c) and (d), based on a finding of substantial danger to D.C.'s emotional well-being. The court ordered D.C. placed with his maternal aunt, under the supervision of DCFS. It ordered family reunification services for D.C. and Mother and Father. As to visitation, the court ordered monitored visitation for Mother, Father, Stepmother, and Stepfather.
J. Subsequent Events
Following the juvenile court's dispositional order, the maternal aunt would not accept placement of D.C. Therefore, he remained in Father and Stepmother's home, under Stepmother's care, while Father moved out of the family home. D.C., Mother, and Father each filed section 388 petitions to modify the orders. Father also filed a motion for reconsideration.
On October 26, 2020, the juvenile court denied each petition and the motion for reconsideration. It confirmed that the suitable placement order, by which D.C. was removed from his parents' homes, remained in effect. However, it permitted Father to return home. Notwithstanding Father's return, because the removal order is still in effect, we are persuaded the matter is not moot.
The matter currently is set for a continued review hearing pursuant to section 366.21, subdivision (e).
DISCUSSION
D.C. argues substantial evidence does not support the juvenile court's finding under section 361, subdivision (c), of substantial danger to D.C.'s emotional well-being if he remained in Father's custody. He contends that he could safely reside with Father, and the juvenile court exceeded its authority in removing him to facilitate reunification with Mother.
A. Legal Standard and Standard of Review
To remove a child from parental custody, the juvenile court must make one of five findings by clear and convincing evidence pursuant to section 361, subdivision (c). (In re V.L. (2020) 54 Cal.App.5th 147, 154.) Of relevance here, "[o]ne ground for removal is that there is a substantial risk of injury to the child's physical health, safety, protection or emotional well-being if he or she were returned home, and there are no reasonable means to protect the child." (Ibid., citing § 361, subd. (c)(1).)
Section 361, subdivision (c)(1) provides: "A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . : (1) 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.
" ' "Clear and convincing" evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt.' " (In re V.L., supra, 54 Cal.App.5th at p. 154.) " '[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.' " (Id. at p. 155 [applying the standard of review articulated in conservatorship matters to dependency proceedings], quoting Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
B. Substantial Evidence Supports the Juvenile Court's Decision to Remove D.C. from Father's Care
The record as a whole contains substantial evidence from which a reasonable trier of fact could find it highly probable that D.C. faced substantial danger to his emotional well-being if he was not removed from Father's care.
D.C. does not dispute the juvenile court's jurisdictional finding that both Mother and Father emotionally abused D.C. by embroiling him in a high conflict custody dispute. There is no evidence to suggest Father ceased doing so, and in fact, the evidence suggests the opposite. Based on D.C.'s initial report that he did not know he had engaged in cell phone hacking until Father explained it to him, it is apparent that Father involved D.C. in making the unsubstantiated hacking allegations. The allegations were debunked by Mother's cell phone expert, and found to be untrue by the juvenile court at both the jurisdictional and dispositional hearings. Nonetheless, after the jurisdictional hearing, Father continued to advance these allegations, as reflected in his comments to Dr. Morris.
After D.C. was placed with Father, Father drew D.C. into a plan to claim he had been pressured by his paternal aunt and Mother to post about suicide on social media. The juvenile court found the explanation of the genesis of the post was lacking in evidentiary support, and amounted to a ploy by Father to blame Mother. This conclusion is supported by the implausible explanations provided by Father and D.C. about the post, and the paternal aunt's denial of any knowledge of the incident.
The day after the Instagram post, Father reported the sexual abuse allegations to D.C.'s therapist, Walker. After the social worker questioned their veracity and told Father that DCFS would not pursue allegations against Mother because she had not been aware of the abuse, Father pressed DCFS to conduct further interviews of D.C. Shortly thereafter, the sexual abuse allegations not only became more elaborate and graphic, but also changed to suggest that Mother knew of the abuse. Based on Father's escalating efforts to gain custody, the juvenile court concluded Father was manipulating D.C. to make the allegations. Combined with the juvenile court's finding about Father's mendacity, the facts provide substantial evidence to support this conclusion.
Further, although D.C. did not have any contact with Mother, D.C. was convinced that Mother did not believe his sexual abuse allegations and wanted him placed in foster care. Father admitted to DCFS that he told D.C. he could be taken to foster care as a result of the Instagram post. It is reasonable to conclude that D.C.'s beliefs about Mother stemmed from harmful comments made to D.C. by Father. This conclusion is bolstered by evidence of Father's controlling and manipulative tendencies as reflected in Mother's testimony; Father's immediate escalation of the slap on Valentine's Day to require an impressionable teenager to report the incident to law enforcement; and the observations of the juvenile court concerning Father's efforts to accompany Stepmother to court to dismiss her divorce petition.
In total, the evidence reveals that Father involved D.C. in pressing unsubstantiated allegations and made emotionally abusive comments to him, demonstrating that he continued to embroil D.C. in the custody dispute while D.C. was in Father's care.
Dr. Morris also opined that at a minimum, Father unintentionally alienated D.C. from Mother. Dr. Morris did not foreclose the possibility that Father's efforts were intentional. Dr. Greenberg also opined that D.C. was being subjected to parental alienation.
Dr. Morris's and Dr. Greenberg's opinions are amply supported by evidence that reveals D.C.'s hostility toward Mother increased over the time that he was in Father's custody. For example, D.C. initially was not afraid of Mother and told the social workers that he loved Mother, even if he did not wish to visit with her. Notwithstanding that D.C. did not have contact with Mother over the many months of the proceedings, on October 22, 2019, D.C. expressed that he hated Mother and told Dr. Morris that he believed Mother did not love him.
Further, Dr. Morris, Dr. Greenberg, and Dr. Arden each opined that alienation—especially deliberate alienation—is psychologically and emotionally damaging to a child. Indeed, both Dr. Morris and D.C.'s therapist, Walker, concluded D.C. actually suffered from depression, distress, and anxiety, or was on the brink of experiencing those conditions while in Father's care. Similarly, Dr. Greenberg saw a need for psychological intervention. D.C.'s suicidal Instagram post, his implausible story as to why he made the post, and his unforgiving perception of Mother are further evidence of D.C.'s emotional distress while in Father's care.
In his opening brief, D.C. concedes that "[t]he juvenile court could reasonably infer from the evidence that [F]ather exerted und[ue] influence over [D.C.] and played a role in the false narratives that [D.C.] convincingly told others." We pause to observe that this is a grave acknowledgement of the strength of the evidence of the psychological manipulation and damage caused by Father. Dr. Greenberg testified that when a parent manipulates a child's perceptions, the child begins to lose touch with the difference between their own feelings and the feelings of the adult, fails to learn to cope effectively, and loses the ability to express his true experiences. This conclusion further buttresses the juvenile court's conclusion that Father was a continuing source of substantial emotional harm to D.C. (See In re Christopher C. (2010) 182 Cal.App.4th 73, 84-85 [concluding that a child's willingness to make false allegations of abuse is demonstrative of serious emotional damage within the meaning of § 361, subd. (c)].)
D.C. acknowledges that in In re H.E. (2008) 169 Cal.App.4th 710, the appellate court upheld a child's removal from her mother because it found serious emotional harm to the child due to the highly charged nature of the ongoing custody battle between the parents and the mother's incessant charges of sexual abuse, which the child internalized. (Id. at p. 723.) D.C. attempts to distinguish In re H.E. on the basis that he is not an impressionable toddler and because "the evidence shows that [F]ather likely used more passive or manipulative means to encourage [D.C.] to advance false narratives harmful to [M]other."
We do not agree with either point of distinction. Both Dr. Morris and D.C.'s therapist (Walker) observed D.C. is emotionally underdeveloped and highly impressionable. Walker reported D.C. easily internalizes the feelings of others and will "sacrifice himself emotionally for the betterment of others." Further, Dr. Morris opined D.C. could not critically assess information he takes in from Father. Accordingly, D.C. exhibits vulnerabilities similar to those that were of concern in In re H.E.
Further, that Father used "passive or manipulative means" to encourage D.C. to lie about Mother does not preclude a finding of substantial danger to D.C.'s emotional well-being. A court need not find a parent intentionally creates the danger. (See § 361, subd. (c) [a removal order must be supported by clear and convincing evidence "there is or would be a substantial danger to the . . . emotional well-being of the minor if the minor were returned home, and there are no reasonable means" to protect the minor absent removal].)
D.C. also finds support for reversing the juvenile court's order in Walker's report that D.C. was making progress in therapy, developing friendships, and improving in school. As D.C.'s own expert, Dr. Greenberg, testified, however, these are not necessarily indications that a minor is emotionally healthy. Nor do these facts indicate that D.C. was free from danger to his emotional well-being in Father's care.
Finally, D.C. argues the juvenile court erred in ordering his removal from Father's home because removal is not authorized as a means to facilitate reunification of a child with an estranged parent. This argument is not persuasive. The juvenile court's efforts to reunify D.C. and Mother have no bearing on its finding, supported by substantial evidence, that D.C. faced substantial danger to his emotional well-being if he was not removed from Father's care. Further, the court's order for reunification services comports with a statutorily mandated goal of the juvenile court. (§ 361.5, subd. (a); see In re Marilyn H. (1993) 5 Cal.4th 295, 310 ["until the time the § 366.26 hearing is set, the parent's interest in reunification is given precedence over the child's need for stability and permanency"].)
In view of the escalating nature of Father's manipulative efforts to embroil D.C. in the custody conflict, and the substantial risk of adding to the emotional trauma D.C. already was suffering, we conclude the juvenile court's determination that D.C. faced a substantial danger to his emotional well-being in Father's care and could not be protected absent removal, was supported by clear and convincing evidence.
DISPOSITION
The December 5, 2019, dispositional order is affirmed.
NOT TO BE PUBLISHED
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
ROTHSCHILD, P. J.
BENDIX, J.