Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK 80235
L.G., in pro. per., for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, J.
L.G. (mother) appeals the dependency court’s jurisdictional and removal orders as to her daughter, A.M., raising insufficiency of the evidence arguments. This case began as a petition alleging sexual abuse by B.M. (father). Soon after the petition was filed, the Los Angeles County Department of Children and Family Services (Department) filed an amended petition alleging that mother was emotionally harming A.M. because she had a history of repeatedly accusing father of sexual abuse despite a lack of evidence, and in some instances, based on illogical conclusions. The court dismissed the allegations against father and sustained the allegations of emotional harm against mother. We affirm.
FACTUAL AND PROCEDURAL HISTORY
1. Detention Report and Hearing
Father and mother have known each other since 2003 and never married. A.M. was born in September 2004. Mother and father split up when mother was pregnant with A.M. Mother reported that domestic violence played a role in their splitting up. She described an incident in November 2004 when mother and father were fighting and father pushed mother off the bed. Mother and father have been embroiled in a custody dispute in family court since 2006. At first, father was allowed monitored visits, and the couple hired a professional monitor. Father’s visits became monitored again when allegations were made that he sexually abused A.M.
On September 30, 2009, the Department received the referral in this case alleging that father had sexually abused A.M. by trying to put his tongue in her mouth and moving her underwear aside to orally copulate her. It was also alleged that A.M. displayed hypersexual behavior by kissing mother’s breasts and trying to put her tongue in mother’s mouth. The reporter also alleged that mother had seen A.M. playing with a teddy bear placed between A.M.’s legs. Also, A.M. told her therapist that paternal grandmother had hit A.M. in the face with a closed fist, and she said that father had pushed her grandmother in an angry manner.
When the social worker interviewed father, he stated this was the third time in four years that mother was coaching A.M. to make false sexual allegations against father. He denied the allegations and reported that A.M. is not afraid of him. Father took a polygraph test on November 24, 2009, during which he explained that he never abused A.M. as alleged. Father passed the test.
A.M. was questioned by the Special Victims Bureau of the Los Angeles County Sheriff’s Department. She told the detective that father had orally copulated her at paternal grandmother’s house.
When the social worker interviewed A.M., she said that father “touched and licked her private part.” She stated this occurred in the home of her paternal grandmother. She also said that father “has touched her many times and that is not good.” She denied kissing her mother on the breast.
A.M. underwent a formal interview at the Harbor-UCLA Child Crisis Center. A.M. told the forensic evaluator that father “pooped” onto her “tummy, ” that father put his tongue in her mouth, and that father touched her “bottom.” During the interview she presented as “self directed, anxious, and avoidant.” The evaluator determined that her “resistance to exploration of abuse-related material impeded clarification of the allegations. Her avoidant behaviors may signal possible over interviewing/questioning prior to the forensic evaluation.” A.M.’s behavior indicating possible avoidance included: making unclear, off-topic comments; frequently turning her attention away from the evaluator; making ghost-like noises; not responding to questions; rearranging interview room furniture; barricading herself between chairs; ignoring the evaluator’s instructions; whispering and murmuring; opening her mouth widely and mouthing words unintelligibly; and falling dramatically to the floor.
On December 3, 2009, the Department filed a petition under Welfare and Institutions Code section 300, subdivisions (a), (b), and (d), alleging that: (1) father has a history of violence towards mother, endangering A.M.; (2) father has a history of violence towards paternal grandmother, endangering A.M.; (3) father sexually abused A.M.; and (4) paternal grandmother physically abused A.M., while father failed to protect her. At the detention hearing on December 3, 2009, the court found a prima facie case for detaining A.M. and showing that she was a child described by section 300. The court ordered A.M. released to mother and monitored visits for father.
All further statutory references are to the Welfare and Institutions Code.
Mother’s counsel indicated that mother wanted to change A.M.’s regular therapist. The court ordered that before any change in therapist was made, mother needed to consult A.M.’s counsel and the social worker.
2.Amended Petition
After the detention hearing, the case shifted focus to include the potential emotional harm mother was inflicting on A.M. by falsely and repeatedly alleging that father was sexually molesting A.M. The family law court ordered that two prior child custody evaluations, one dated October 30, 2006, and one dated January 27, 2009, be released to A.M.’s counsel and the Department. Both of these reports were extensive the 2006 report totaled 74 pages and the 2009 report totaled 71 pages and both had concluded that father had not sexually abused A.M. and that the parents should have joint custody.
On February 10, 2010, the Department filed a first amended petition under section 300, which added allegations under subdivision (c) that mother was emotionally abusing A.M. or causing her undue emotional trauma by repeatedly alleging that father had sexually abused A.M., despite a lack of evidence and, in some instances, illogical conclusions. It was alleged that these repeated allegations against father subjected A.M. to numerous interviews and medical examinations regarding sexual abuse and impaired her relationship with father.
a. Prior Custody Evaluation from 2006
The earliest custody evaluation from 2006 was performed by Dr. Ian Russ. Mother had alleged that father was “sexually inappropriate” with A.M., including the following specific allegations among others: rubbing a doll’s hand over A.M.’s genitals while changing her diaper; expressing a desire to have sex with mother while A.M. was in her crib in the room; an instance of masturbating in A.M.’s presence; grabbing A.M.’s thighs while changing her; and asking mother whether she was sexually aroused by breastfeeding. Mother concluded that father was sexually abusing A.M. because of A.M.’s behavior while changing A.M.’s diaper when she was 14 months old, A.M. pulled mother’s head to her genitals and pointed to her genitals and her mouth while sticking out her tongue.
Dr. Russ’s evaluation noted that mother’s scores on her psychological testing indicated mother responded with a degree of defensiveness greater than most other women custody litigants. Mother attempted to present herself as exemplary, and was either deliberately avoiding revealing anything problematic about herself or was deceiving herself. In contrast, father’s scores indicated a degree of candor that is expected among custody litigants. A.M., two years old at the time, appeared to have a warm and healthy attachment to each of her parents. Dr. Russ concluded that mother’s allegations of sexual abuse were unfounded and that mother operated on a false belief that father had molested A.M. and was a pedophile. He concluded that mother had conformed events, behavior, and father’s history to her belief, creating an internally consistent belief system despite lack of evidence and, in some instances, illogical conclusions about behavior. For example, mother took A.M.’s behavior when she was changing her diaper as an indication that she had been orally copulated before and was attempting to repeat it with mother. But even mother said that father was never left alone with A.M. during this time, except for 10- to 15-second periods when mother might leave the room. (She later revised the 10 to 15 seconds to one to two minutes.) Dr. Russ explained that for a 14-month-old baby to repeat almost any behavior requires multiple repetitions over extended and intermittent time periods. Father would not have had time to do this in a 10-second to two-minute period, and he only visited A.M. two to three times a month. If A.M. were capable of repeating this behavior, it had to be copied from someone else who was with her for longer and repeated periods of time. However, mother did not investigate daycare providers or babysitters who changed A.M.’s diapers, and instead immediately assumed that A.M.’s behavior was a sign of father’s sexual abuse. Dr. Russ was concerned that mother would continue to carry her beliefs into the future and continue to misinterpret behaviors.
Dr. Russ also concluded father’s behavior that concerned mother was not indicative of pedophilia. For example, it was common in his experience for fathers to ask about mothers’ bodily sensations when breast feeding, including sexual arousal, as they are both curious and using it to check whether the mother desires to reconnect sexually after childbirth. It was common enough that there was academic literature investigating the topic. As another example, Dr. Russ reported tickling, even on a infant’s thighs, is an appropriate way of bonding with a child. Dr. Russ noted that father was very playful with A.M., and this was a sign of enjoying and having fun with one’s infant. Moreover, father denied that he ever used a doll to rub A.M.’s genitals, but said that he was merely removing a doll that was under A.M. when he was changing her.
In sum, Dr. Ross concluded that mother’s allegations of sexual abuse and pedophilia were unfounded, and there was “no independent evidence, either by witness, testing, history taking or clinical observation, to support that [father] is unstable or unpredictable or that he has any predilection to pedophilia.”
b.Prior Custody Evaluation from 2009
The 2009 evaluation was performed by Dr. Sam Gleason. Dr. Gleason analyzed some 45 concerns regarding either father’s behavior or A.M.’s behavior that mother had raised in written statements between May 2006 and November 2008. After reviewing mother’s concerns, Dr. Gleason did not believe that father had sexually abused A.M. For instance, one of the concerns that cropped up continually was that A.M. said father had “pooped” on her, and she described this happening when she and father were at the beach and the monitor had left them alone briefly. Mother took this to mean father had ejaculated on A.M. Father denied doing this. The doctor spoke to the monitor, and she said that she never left father and A.M. alone. Based on the monitor’s and father’s statements, and the fact that the beach was a public place, Dr. Gleason concluded that this probably did not occur.
Dr. Gleason noted that A.M.’s therapist, who specializes in treating sexually abused children, found no indicators that A.M. had been sexually abused, and four medical and forensic examinations of A.M. (two by pediatricians, one at the Harbor-UCLA Child Crisis Center, and one at Stuart House) had never found any sexual abuse. He also noted that there were two prior referrals to the Department (one in November 2006 and one in January 2007), and they had both resulted in determinations that allegations of sexual abuse were unfounded.
Dr. Gleason reported that when A.M. exhibited sexualized behavior (e.g., touching her genitals), and mother asked where she learned such behavior or if someone had done this to her, A.M. generally responded, “daddy.” But the behaviors that concerned mother were taking place during a time when father was having monitored visits with A.M. The doctor felt that A.M.’s response was initially a spontaneous reply, but she learned to repeatedly refer to “daddy” when being questioned about events because she learned that the response was somehow pleasing to mother, and by blaming father A.M. escaped responsibility for the behavior that she could see troubled mother. The doctor also felt that mother had an overly fearful nature coupled with hostile feelings toward father, which resulted in her misinterpreting or drawing incorrect conclusions from A.M.’s statements. He further found mother to be hypervigilant or overly focused on A.M.’s sexualized behaviors, and some of her suspicions about father “seem[ed] to have almost paranoid qualities.”
c. Jurisdiction/Disposition Report
The jurisdiction/disposition report contained more information about the previous referrals to the Department. The November 2006 allegations were that A.M. was using a doll to masturbate, and she had pointed to her tongue and her genitalia when mother was changing her diaper. Based on Dr. Russ’s evaluation in the family court and the family court’s determination that father should have unmonitored visits, the investigation concluded the allegations of sexual abuse by father were unfounded. The January 2007 allegations were that A.M. began displaying inappropriate sexual behavior after visits with father, such as masturbating, putting a finger in her anus, and using a doll’s hand to touch her genitals. A.M. was examined at Stuart House. The examiner determined that A.M.’s behavior was within normal limits, but that A.M.’s behavior could become suspicious if she continued to touch herself after being told no or did so to the point of pain. An evaluator at the Harbor-UCLA Child Crisis Center concluded that there were concerns over mother’s mental health, not A.M.’s. Mother told the evaluator that she checked A.M.’s hymen after every visit with father “to make sure it was not ruptured.” The evaluator told mother that she needed to stop doing this, and if she kept examining A.M.’s hymen, A.M. would develop a heightened interest in the genital area. The investigation again concluded that the allegations of sexual abuse by father were unfounded.
When the social worker interviewed A.M., she said “no” when asked whether anyone had ever touched her and made her feel uncomfortable. When asked whether “daddy” had ever touched her in a way that made her feel uncomfortable, A.M. first said “no, ” and then “[o]h yeah, he did.” A.M. first said she “d[id]n’t really remember” what part of her body father had touched, but when asked again she got one of her dolls and pointed to the doll’s vaginal area.
Mother again reported several instances of inappropriate behavior to the social worker that she believed indicated father was sexually abusing A.M. During a period of unmonitored visits with father from November 2006 to January 2007, A.M. was inserting objects into her vagina, and saying “daddy bad” and playing with her genitals. In October or November of 2009, she told mother’s friend that father “does bad things to me” and he “pooped” on her. Mother stated that A.M. has said father licked her, and when asked where, A.M. pointed to her vagina.
Father denied all allegations, saying that while he has changed A.M.’s diapers, he was not touching her in a sexual manner during diaper changes. He had noticed A.M. touching her vagina when he changed her, but he was not concerned by it because he read it was common for children to do this.
The social worker also interviewed A.M.’s paternal grandmother. She was appointed to be father’s monitor sometime in 2009. Paternal grandmother stated that she never observed father touching A.M. in appropriately or talking to A.M. in a sexual manner. She had also never observed A.M. behaving in a sexual manner or touching or fondling herself. A.M. had never disclosed to paternal grandmother that father touched her inappropriately.
The social worker interviewed A.M.’s most recent therapist, Dr. Toni Cavanagh Johnson. Dr. Johnson was A.M.’s therapist from March 2009 to November 2009. Dr. Johnson stated that A.M. has told her “many fantastical stories” that could not be true. She thought A.M. was trying to do what mother wanted her to do. Dr. Johnson has observed father and A.M. interact, and A.M. has never expressed any fear of father. She observed father to be “really good with [A.M., ] and he knew how to interact and play with her.” It was Dr. Johnson’s opinion that the alleged sexual abuse by father had never occurred. Dr. Johnson was still very concerned for A.M. Mother had not allowed Dr. Johnson to see A.M. alone since October 6, 2009. Mother’s last contact with the doctor in November “was not positive.” Mother told Dr. Johnson that she was not allowed to be alone with A.M., and mother said she was “going to Court to get rid of” the doctor.
The social worker’s report included letters from friends of mother. One friend reported that A.M. is often withdrawn and at times nonreactive in social situations. She had witnessed A.M. being aggressive on many occasions, including hitting other children, taking a toy from another child and purposefully breaking it, and hitting mother. She also felt that A.M.’s “total lack of remorse for causing pain” to another person was “alarming, ” explaining that A.M. frequently antagonized her daughter and appeared to be satisfied when she realized she had hurt the girl’s feelings. She reported one particular incident that she found to be “disturbing” involving her daughter. During a play date at mother’s house, she found A.M. naked and her daughter with her pants pulled down, and A.M. was putting nail polish on her daughter’s vaginal area. Another of mother’s friends wrote a letter describing how she had witnessed A.M. rubbing her face in mother’s crotch and saying, “I wanna lick your butt.” This friend also noticed A.M. acting aggressively with her daughter; for example, A.M. slammed the door in her daughter’s face.
The conclusion of the Department in the jurisdiction/disposition report was that while “it [was] difficult to ascertain whether or not the events that the child has disclosed are real and true, ” “in the recent Family Court trial the experts did not find any evidence of the child being sexually abused.... What is evident is that the parent[s’] dysfunctional relationship and the mother[’]s continued attempt to prove the father is sexually abusing the child is causing [A.M.] to experience ongoing trauma.” The Department recommended that A.M. be removed from father’s custody, that she continue to receive mental health services to explore the source of her sexualized behaviors, and that mother not be present during these therapy sessions. It further recommended that mother not change A.M.’s therapist (Dr. Johnson) without prior approval of the Department and A.M.’s counsel. Also, it recommended that mother, father, and A.M. undergo psychological evaluations to assist it in making recommendations for reunification and visitation services.
d. February 2010 Hearing
At a hearing on February 10, 2010, A.M.’s counsel argued that the new allegations in the amended petition of emotional harm by mother “seem to be an accurate depiction of what’s going on in this case, ” and she requested that A.M. be detained from mother and placed with paternal grandmother. A.M.’s counsel felt not only that mother’s repeated allegations of sexual abuse were harming A.M., but mother had demonstrated that she could not follow court orders because she had changed A.M.’s therapist without counsel’s and the Department’s consent. Father joined in the recommendations of A.M.’s counsel. The Department was “not opposed” to detaining A.M. and considering paternal grandmother for placement. Mother objected to detaining A.M. and argued removing her from mother’s custody would be detrimental.
The court determined A.M. should be removed from mother’s custody and should not be in the home of either parent at that point: “Because we’re not at the jurisdictional aspect, I don’t know exactly where the truth lies in this case. But I think the Department’s done a pretty good idea of giving me a roadmap. And I came to the conclusion when I read this that the child was at risk of severe emotional harm and, until this was all sorted out, it was my view that the child ought not to be in the home of either parent.” The court ordered the Department to assess any appropriate relative, including paternal grandmother, or anyone else father and mother might propose, and to detain A.M. with whomever was determined to be appropriate. The court did not order psychological evaluations for the family because there had already been two evaluations performed in the family court. The Department did, in fact, place A.M. with paternal grandmother.
3. Jurisdictional Hearing
Before the jurisdictional hearing, the court received some “last minute information, ” including a report of a conversation the social worker had with Dr. Suzanne Dupee, whom mother had retained to do an evaluation. Dr. Dupee stated that mother had hired her to determine if mother was rational and reasonable in thinking that the sexual abuse by father was occurring. Mother reported to Dr. Dupee that she had three psychiatric hospitalizations in her history, two in the 1990’s and one in 2008. Mother reportedly experienced psychosis and delusions but was not suicidal. Mother said the psychosis was brought on by someone putting the drug LSD in something mother ate or drank. Dr. Dupee stated she had some concerns about mother and felt she needed to be under the care of a psychiatrist and on medication. Although mother had apparently retained Dr. Dupee, mother never submitted a report from the doctor.
The court commenced the jurisdictional hearing on April 26, 2010. The court dismissed all counts in the amended petition except the count under section 300, subdivision (c) alleging, as interlineated, the following: “The child [A.M.’s] mother, [L.G.], is causing undue emotional trauma to the child by repeated allegations of sexual abuse by the father[, ] causing the child to be subjected to numerous physical [and] sexual exams and interviews, placing the child at risk of substantial risk of serious emotional damage.” The court sustained this count.
The court found beyond a preponderance of the evidence that there was not substantial evidence to support a finding father had sexually abused A.M. The court also found there was no evidence to support that domestic violence was placing A.M. at current risk of harm. As to the sustained count that mother was causing emotional trauma to A.M., mother testified at the hearing relating to this count. Mother recalled five sexual abuse referrals being made. She testified that she made one “referral, ” though this was actually a police report in 2008. Three referrals to the Department were made by mandated reporters, A.M.’s medical doctors, based on statements from mother. The most recent referral was from A.M.’s therapist, also a mandated reporter, based on statements A.M. had made. Mother recalled A.M. having two forensic sexual abuse examinations. She stated that she tried to examine A.M.’s hymen “one or two” times.
The Department, A.M.’s counsel, and father all argued that two counts under section 300, subdivision (c) alleging emotional abuse or emotional trauma caused by mother should be sustained. At that point, mother requested that the court let her proceed in pro. per., which the court denied because the request was made so late in the proceedings and would cause undue delay. Mother’s counsel then proceeded to argue that the section 300, subdivision (c) counts should not be sustained.
The court found that there was ample evidence A.M. had exhibited behavior that was cause for concern and that could be the result of stress, court involvement, and the hypervigilance of mother. The court felt that there was “an overwhelming amount of contradiction of mother’s position by just about every professional who’s touched this case, ” and “[t]hey can’t all be wrong.” The court found that A.M. was at substantial risk of suffering serious emotional damage evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward herself or others. The court noted A.M. was “excessively masturbating, ” aggressively pursuing other children, and withdrawing by doing things like barricading herself in a makeshift “fort” made of chairs when an interviewer was trying to question her. The court expressed concern that even though all the professionals had failed to support mother’s position, if the court dismissed the petition altogether, mother would make more allegations, and the family would be back in court soon enough. The court stated: “I don’t blame her for having an agenda of wanting to protect the child. But at some point, ma’am, you’ve got to understand that no one has bought it yet[, ] and no one is going to buy it. And I’m not going to sit here and allow this child to be further damaged by further exams, and further court hearings, and further proceedings.” The court thus sustained the second count under section 300, subdivision (c), as described above, and struck the first count alleged under subdivision (c).
4. Mother’s Section 388 Petition and Disposition
Before the disposition hearing, mother requested to proceed in pro. per., and the court granted her request. On June 9, 2010, mother filed a petition under section 388 to modify the court’s order removing A.M. from mother’s custody so that A.M. could be placed back with mother. After several continuances of each, the court scheduled the contested disposition hearing and the hearing on mother’s section 388 petition for September 1, 2010. The court appointed Dr. Daniel Kramon to conduct a psychological evaluation of the parents prior to the disposition hearing.
a. Dr. Kramon’s Evaluation
Dr. Kramon’s report stated that mother was hospitalized for psychiatric reasons in 1997. She reported that a man she was dating put LSD in her drink. She was hospitalized for two days and took psychotropic medication while in the hospital, but she did not continue taking it after discharge. She was hospitalized for two days in 1999 again for psychiatric reasons. Mother reported feeling similar to how she felt when the man put LSD in her drink, and she felt that the 1999 episode was somehow related to the 1997 episode. Her third psychiatric hospitalization occurred in 2008 after A.M. told mother that father had “pooped” on her. Mother thought she likely had a “psychotic episode.” She felt that she had experienced a “break from reality” after hearing A.M. say this, and she felt “very afraid.” She was hospitalized for four days. Mother had been seeing a psychotherapist for the last year or more, but she was uncomfortable signing a release for Dr. Kramon to talk to the therapist.
Mother admitted to Dr. Kramon that she tended to overanalyze things, and a test administered by Dr. Kramon resulted in indications of “excessive stress and rumination and worry such as obsessive-compulsive disorder.” Mother told Dr. Kramon that she was “99.9%” certain that father had sexually abused A.M. based on A.M.’s statements/behaviors and research she had done on her own.
Father reported to Dr. Kramon that he has been seeing a psychotherapist since May 2009 to help him deal with court related issues, but before that time he had never received mental health services. He gave Dr. Kramon permission to speak with this psychotherapist. When asked why mother would make allegations of sexual abuse against him, father felt that the allegations had started approximately one month after he had filed for joint custody in the family court. He felt that mother “needed to figure out a way to stop [him] from having joint custody.” He felt that the best plan was for him to be the primary parent until mother could “gain some emotional mental stability, ” but he did want to see mother be a joint parent again and wanted “to be friends” with mother.
Dr. Kramon spoke with A.M.’s therapist, Dr. Johnson. Dr. Johnson’s last session with A.M. was in April 2010 because A.M.’s government funding for therapy had ended. In total, Dr. Johnson had conducted 40 psychotherapeutic sessions with A.M. In her opinion, father had not sexually abused A.M. She had no concerns about father in this regard. She felt that A.M. was prone to making “fantastical statements” regarding sexual abuse. For instance, A.M. would report being sexually touched by father and then she would “take it back.” Other times, A.M. would describe father crawling across the floor towards her and molesting her in the presence of his parents and Dr. Johnson. Dr. Johnson thought A.M. had a propensity for fabricating stories and was trying to work with A.M. and mother on this. Mother would not agree to work with A.M. on not fabricating stories because she felt it might stop A.M. “from saying when bad things happen.” Dr. Johnson had conjoint sessions with both A.M. and mother and A.M. and father. She felt strongly that mother was “very emotionally abusive” with A.M. and that mother had little ability to see the effect of this on A.M.
Dr. Kramon concluded that mother did not agree with or disregarded any expert/professional who disagreed with her own conclusion that father sexually abused A.M. Further, mother was obsessed with the idea that the abuse had occurred. Rather than seeking objective consultations of professionals, mother sought to corroborate her own conclusion. Dr. Kramon concluded mother’s concerns do not involve an attempt to be deceptive, but they do involve a bias whereby she seeks substantiation of her concerns. Dr. Kramon noted that mother still held her concerns, even though A.M.’s psychotherapist did not believe father had abused A.M., the two child custody evaluators concluded father had not abused A.M., and the exams by Stuart House and Harbor-UCLA Child Crisis Center did not find that father had abused A.M. Despite mother’s obsession with her concerns, Dr. Kramon noted that mother had personality traits that were conducive to being a supportive, loving, and responsible parent.
Dr. Kramon thought it unlikely that mother or father would consciously abuse A.M., either physically, emotionally, or sexually. However, mother could be prone to subjecting A.M. to extensive interviews and evaluations that heighten the focus on sexual activity. The doctor found it “difficult to believe that, given [mother’s] extreme preoccupation and concern with the sexual abuse issue, at some point A.M. was not privy to some of [mother’s] feelings.” Dr. Kramon recommended that gradual steps to reunification between A.M. and father occur, after A.M.’s therapist could report on how A.M. would feel about seeing father more often, and assuming her therapist did not believe she was at risk with father. It was recommended that the reunification start with unmonitored visits, then staying overnight with father, and eventually living with father. As to mother, Dr. Kramon recommended that very gradual liberalization of visits occur, but only after strong assurances could be provided that mother would not involve A.M. in mother’s sexual abuse concerns. Dr. Kramon felt that both mother and father should remain in psychotherapy, and before any significant changes were made in visitations or reunification, both parents’ therapists should be consulted.
b. Evaluation from Mother’s Expert
Mother retained Dr. Robert Geffner to conduct a psychological evaluation of her in advance of the disposition hearing. Dr. Geffner’s evaluation was based on a review of the records in this case and an interview with and tests on mother. Dr. Geffner did not interview father, A.M., or any other individuals. He concluded that there were no real concerns with mother’s psychological functioning in general or with her attitudes toward parenting specifically. There was no evidence of suspiciousness, paranoia, or obsessiveness in mother’s interview or psychological testing. He felt that mother had not committed emotional abuse, nor was there a risk of her doing so in the future. Dr. Geffner concluded there was “actually no evidence of emotional abuse in the records, ” and her psychological assessment did not yield any results consistent with an abusive personality. He opined that the examinations and interviews to which A.M. had been subjected did not constitute emotional abuse in and of themselves, especially because it was “definitely possible” she had been sexually abused or systematically exposed to sexual activity, based on her behaviors. He thought that “[A.M.] being interviewed by multiple professionals or [mother’s] being persistent in trying to find out what may have happened to her daughter, and believing her daughter may have been sexually abused does not produce sexualized behaviors in a young child. Stating that [mother’s] actions in the above situation constituted emotional abuse of her daughter does not fit the definition of emotional abuse or follow any accepted standards of practice.”
c. Disposition Hearing and Order
Updated information from the Department prior to the disposition hearing indicated that A.M. had started seeing a new therapist. It was noted that A.M. seemed to be doing better since she had been removed from mother’s care in that she was no longer displaying sexualized behaviors or symptoms of potential sexual abuse. The Department’s interim review report concluded that it would not be in A.M.’s best interest to be returned to mother at that time. It agreed with Dr. Kramon that mother needed to make significant progress in therapy towards not involving A.M. in her concerns of sexual abuse. The Department noted that mother had still not signed a release of information allowing the Department or anyone else to communicate with her therapist. As a consequence, the Department had been unable to discuss with mother’s therapist what goals she needed to reach to move toward reunification.
The disposition hearing and the hearing on mother’s section 388 petition commenced on September 1, 2010. Mother called father and her visitation monitor as witnesses. The court then addressed mother’s section 388 petition, which was based primarily on Dr. Geffner’s report. The court denied the petition and indicated that Dr. Geffner’s report did not contain anything “new” he essentially disagreed with the observations of other professionals in the case based on his review of the records, but there was nothing in his report to change the court’s view of the facts in the case. The court then recessed for the day, and the following day mother called Dr. Geffner and herself as witnesses. Mother testified that she agreed with Dr. Russ’s 2006 custody evaluation in which he concluded father did not sexually abuse A.M. She stated that she never said father had sexually abused A.M., only that she was convinced he had inappropriate thoughts about children. After mother’s testimony, the court heard argument.
The Department recommended that the court follow the recommendations of Dr. Kramon in his report that A.M. remain where she was then placed (with paternal grandmother) and that steps be taken to reunify with father and mother. A.M.’s counsel joined in the Department’s recommendation. A.M.’s counsel stated that Dr. Geffner’s report only confirmed the concerns counsel had held since the beginning of the case that mother was still attempting to prove that her belief in sexual abuse was reasonable. A.M.’s counsel further noted that while mother testified that day that she had changed her views, she still had not allowed the Department access to her therapist, and that person would be the most helpful in determining whether mother had come to a different understanding of the case. Father requested overnight, unmonitored visits. Mother requested that the court speed up the reunification plan recommended by Dr. Kramon.
The court ultimately found by clear and convincing evidence that continuance in the home of the parents was contrary to A.M.’s welfare and that a substantial danger existed to A.M.’s physical health, safety, and emotional well-being. Further, there was no reasonable means to protect A.M. without removal. The court ordered the Department to find suitable placement, provide reunification services to both parents, and convene a team decisionmaking meeting to address visitation. It also ordered both parents to continue with individual counseling, and conjoint counseling was ordered as well.
STANDARD OF REVIEW
In reviewing the jurisdictional and dispositional findings of the dependency court, “we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial evidence, we must uphold the judgment or findings, even though substantial evidence to the contrary may also exist, and the juvenile court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113 [“If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm”].)
We review an order removing a child from a parent’s custody for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We will not reverse the dependency court’s dispositional orders except for a clear abuse of discretion. (In re Ethan N. (2004) 122 Cal.App.4th 55, 65; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) The dependency court has broad discretion to determine what would best serve and protect the minor’s interest and to devise a dispositional order in accordance with this discretion. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.) The dependency court abuses its discretion when it acts in an arbitrary, capricious, or patently absurd manner. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
DISCUSSION
1. Substantial Evidence Supported the Dependency Court’s Jurisdiction
Mother challenges the court’s exercise of jurisdiction over A.M. because, she contends, A.M. cannot be deemed a “neglected child.” We disagree and conclude substantial evidence supported the court’s jurisdictional finding.
The court exercised jurisdiction based on section 300, subdivision (c). A child may be adjudged to be a dependent of the court under subdivision (c) if the “child 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.” (§ 300, subd. (c).) Under this subdivision, the Department must prove three things: “(1) the offending parental conduct; (2) causation; and (3) serious emotional harm or the risk thereof, as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior.” (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)
Here, there was sufficient evidence of “offending parental conduct” in mother’s repeated allegations of sexual abuse, which resulted in A.M. being subjected to repeated interviews and exams, despite the conclusions of numerous professionals that father had not sexually abused A.M. Although mother argues that she made only one referral, several can be traced directly to mother because they were made by mandated reporters based on allegations or statements mother made to them. The first referral to the Department occurred in November 2006 and was determined to be unfounded. Mother testified that this referral was by a doctor who saw A.M. for “seizure-like” behavior, and the doctor had asked what was currently happening in A.M.’s life. Mother discussed her concern that father was abusing A.M. because A.M., at 14 months old, had pointed to her tongue and genitalia during a diaper change, which mother took to mean father was orally copulating A.M. By this time, Dr. Russ had already performed the first child custody evaluation for the family court several months earlier, and he had determined that father was not abusing A.M. He found mother’s belief that abuse had occurred based on the diaper changing incident, in particular, to be illogical by mother’s own admission, father was never alone with A.M. long enough to inflict the type of repeated abuse that would be necessary for A.M. to suggest the action to mother. A.M. was subjected to a medical exam as a result of this referral.
The second referral to the Department was in January 2007, and mother testified it was made by A.M.’s pediatrician, another mandated reporter. This was also based on mother’s expressed concerns, specifically that A.M. was masturbating and using a doll to touch her genitals and touching her anal cavity during diaper changes. A.M. was interviewed and examined, this time at Stuart House, which found that A.M.’s behavior did not indicate abuse. During this referral also, Harbor-UCLA Child Crisis Center expressed concerns over mother’s mental health, but not A.M.’s. The evaluator told mother that she should stop her practice of checking A.M.’s hymen after visits with father. This referral also concluded in a determination that the allegations of sexual abuse by father were unfounded.
The third and fourth referrals were within days of each other and were the referrals that resulted in the petition in this case. A.M.’s pediatrician again made a referral on September 30, 2009, when mother told the doctor that A.M. said father licked her vaginal area. A.M.’s therapist, another mandated reporter, made a referral around October 7, 2009, based on statements from A.M. that father had licked her vaginal area. As a result of these referrals, A.M. has been interviewed by Harbor-UCLA Child Crisis Center.
Thus, mother has continued to make allegations that father was sexually abusing A.M. after both Drs. Russ and Gleason had determined this was not the case in their extensive custody evaluations. Mother’s allegations also continued after A.M. had undergone two medical exams and/or interviews as a result of referrals to the Department, both of which concluded in determinations that the allegations of abuse were unfounded. At the jurisdictional hearing, mother testified that she was still concerned with A.M. having unmonitored visits with father because she believed he would sexually abuse A.M. In short, there was ample evidence of offending conduct in what professionals in this case have variously characterized as mother’s “obsessive, ” “hypervigilant, ” or “overly fearful” behavior regarding sexual abuse. Based on mother’s testimony at the jurisdictional hearing, the court had every reason to believe that her behavior would continue.
There was also substantial evidence that A.M. is suffering or is at risk of suffering serious emotional harm as evidenced by her behavior. A.M. has been described as withdrawn and nonreactive in social situations. She has also been described as lacking remorse for causing pain to other children with whom she plays. She has engaged in aggressive or inappropriate play with other children, including hitting others, slamming a door in a playmate’s face, and putting nail polish on a playmate’s vaginal area while naked. Most importantly, there is the frequent sexualized behavior that mother has reported, such as the many instances of masturbation, putting objects in the vagina, using dolls to touch the vaginal area, and saying things like “I wanna lick your butt.”
We note that none of the professionals in this case have concluded these sexualized behaviors were the result of father abusing A.M. But there was sufficient evidence to support that mother’s extreme focus on perceived sexual abuse was causing this behavior. Dr. Johnson observed that A.M. has been trying to do what mother wanted her to do in suggesting that father was touching her inappropriately. Dr. Gleason expressed a similar sentiment when he concluded that A.M. had learned to refer to “daddy” when being questioned about sexualized behavior because that response seemed to please mother. The evaluator at the Harbor-UCLA center noted that mother’s checking A.M.’s hymen after every visit with father would cause A.M. to develop a heightened interest in her genital area, and she advised mother to stop that practice. Notably, after A.M. was removed from mother’s custody in February 2010 and placed with paternal grandmother, there was not a single report of A.M. exhibiting the sexualized behaviors mother reported her frequently exhibiting when she lived with mother. Nor were there any reports of A.M. being unusually aggressive or withdrawn. The Department’s reports after she began living with paternal grandmother indicated that she was happy there and doing well in school and otherwise. In all, the court had sufficient evidence to exercise jurisdiction over A.M. based on emotional harm, or the risk of emotional harm, by mother.
Mother relies on In re Alexander K., supra, 14 Cal.App.4th 549 and In re Brison C. (2000) 81 Cal.App.4th 1373 to support her argument, but these cases are readily distinguishable. The court in Brison C. held that the dependency court had no jurisdiction under section 300, subdivision (c) because the record lacked significant evidence of behavior by the child indicating emotional harm, other than the child’s deep dislike and fear of his father. (In re Brison C., supra, at p. 1380.) The court in Alexander K. held that the dependency court had no jurisdiction under the same subdivision because the court relied solely on the child’s troubling behavior and reactions, but there was no evidence of offending conduct by the parent. (Alexander K., supra, at pp. 559-560.) Here, as discussed above, the record provides sufficient evidence of both behavior indicating emotional harm and offending conduct by mother.
2. Substantial Evidence Supported the Dependency Court’s Removal Order
Mother argues that A.M.’s removal from her custody was improper. Again, we disagree.
After finding that children are persons described in section 300, and therefore the proper subject of dependency jurisdiction, the court must determine “the proper disposition to be made of the child[ren].” (§ 358, subd. (a).) To remove children from parents’ custody, the court must find that (1) the welfare of the children requires that they be removed because of a substantial danger, or risk of substantial danger, to their physical health, safety, protection, or physical or emotional well-being, and (2) there are no reasonable means to protect them without removing them. (§ 361, subd. (c)(1); Cal. Rules of Court, rule 5.695(d)(1).)
To support the removal order, “the court may consider the parent’s past conduct as well as present circumstances.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) “The... child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child.” (Ibid.; accord, In re Kristin H., supra, 46 Cal.App.4th at pp. 1656-1658.)
Here, the same substantial evidence supporting the court’s jurisdiction supported the court’s removal order. Evidence and statements compiled in preparation for the disposition hearing also supported the removal order. Dr. Johnson said that she felt strongly mother was emotionally abusing A.M. and had little ability to see the effect on A.M. Mother had refused to work with A.M. and Dr. Johnson on A.M.’s propensity to fabricate stories because mother felt it might stop A.M. from reporting “bad things.” Mother told the court-appointed evaluator, Dr. Kramon, that she was still 99.9 percent certain father had sexually abused A.M. Dr. Kramon concluded that mother was obsessed with the idea that the abuse had occurred and would reject any evaluations that said otherwise, instead seeking substantiation of her own belief. Dr. Kramon further concluded that mother could be prone to subjecting A.M. to extensive interviews and evaluations that heighten the focus on sexual activity, and he found it “difficult to believe” that mother’s “extreme preoccupation” with the sexual abuse issue had not affected A.M. Dr. Kramon recommended A.M.’s removal from mother, with gradual reunification. In light of the record, the court could properly conclude that removal from mother was the only reasonable alternative.
DISPOSITION
The orders are affirmed.
WE CONCUR: BIGELOW, P. J. UBIN, J.