In re Mateo C.

Filed 4/18/06 In re Mateo C. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Erika N. appeals from a February 23, 2005 jurisdictional and disposition order declaring her son, Mateo C., to be a dependent of the juvenile court. (Welf. & Inst. Code, § 300, subd. (c).)^[1] The trial court found that Mateo was at risk of suffering serious emotional harm, removed Mateo from appellant's care, and placed him with his natural father, Carlos C. We affirm.

Facts and Procedural History

Appellant and Mateo's father, Carlos C., have engaged in a bitter custody battle. In October 2003, the family law court awarded joint legal custody with physical custody to appellant. (In re Marriage of Carlos C. v. Erika M., San Luis Obispo County Sup. Ct., Case No. FL021028.) Co-parenting was not an option because appellant and father were unable to communicate. Their relationship was marred by acrimony, allegations of harassment, and bitter disagreements about how Mateo should be raised. The family law court warned that if appellant and father failed to set aside their differences, "Mateo's mental health is likely to suffer from the rancor and conflict in their relationship."

On May 4, 2004, appellant reported that father was abusing Mateo. The Moro Bay Police Department and San Luis Obispo County Department of Social Services (DSS) investigated and concluded that the allegation was unfounded.

The next referral was May 6, 2004. Appellant complained that Mateo (age 2) was combative, aggressive, and engaging in sexually inappropriate behavior after visiting father. Appellant videotaped Mateo on the toilet masturbating and reported that father taught Mateo "how to make it big." Law enforcement agencies investigated and determined that the sexual abuse accusation was unfounded.

More referrals were received on August 16, 2004, September 25, 2004, and September 27, 2004, based on appellant's claim that father was sexually abusing Mateo. The referrals were investigated by the police, the district attorney, a social worker, and a Sexual Abuse Response Team (SART), all of whom concluded that Mateo had not been molested.

A social worker advised appellant that the sexual abuse allegations and physical exams were harming Mateo emotionally. Appellant was offered services but declined, stating that she would seek counseling. The family law court and the police asked appellant to stop videotaping and coaching Mateo.

Appellant continued to videotape and interrogate Mateo about suspected sexual abuse. By October 1, 2004, appellant presented three new videotapes that were reviewed by the police, a psychologist, and a SART team. After viewing the videotapes, SART physician Doctor H. Howard Kusumoto opined the Mateo had been "subjected to emotional/psychological abuse and trauma" and recommended removal and placement in a neutral setting.

Doctor Beryl R. Davis was appointed by the family law court to conduct a psychological/custody evaluation. Doctor Davis opined that appellant was attempting to sabotage father's relationship with Mateo or that appellant might be suffering a form of Munchausen's by Proxy and lodging sexual abuse complaints to garner attention. Doctor Davis reported: "Whatever the underlying reason, the behavior that she pursues with Mateo in search of allegations of abuse by [father] in itself constitute[s] abuse of this child and it is, in my professional opinion, grounds for removal of the child from her care." The doctor recommended that Mateo be placed with father and that appellant be provided supervised therapeutic visitation.

On October 5, 2004, DSS filed a juvenile dependency petition alleging that Mateo had suffered emotional harm while in appellant's care and was at substantial risk of suffering serious emotional damage. DSS placed Mateo in foster care for about a week and then placed him with his father. Appellant was provided counseling, family services, and visitation. DSS reported that: "Both parents are unable to communicate with each other without hostility to such an extent that it places the minor at emotional risk. The father has tried to protect the minor in Family Court and even though all parties including the minor were represented by counsel, the minor continued to suffer emotional abuse during the pendency of the Family Court proceeding."

The contested jurisdictional/disposition hearing spanned several months. The trial court found that Mateo, "who is only three years old, has suffered emotional abuse in the care of his mother. The minor's mother has claimed on numerous occasions that the father has been molesting the minor. There have been six sexual abuse referrals alleging that the father has been molesting the minor The most recent referrals were received on September 27, 2004, October 1, 2004, and February 8, 2005. The sexual abuse referrals have been unfounded. Emotional abuse in regards to the minor's mother has been substantiated. The mother has spent hours videotaping the minor and questioning the minor regarding being molested by his father The minor has requested her to stop taping him, has cried and struggled while [his] mother has held the minor's legs apart, videotaping his genital area. The mother was told not to videotape her son by both [DSS] and the Moro Bay Police Department, but did not stop."

Substantial Evidence

Appellant argues that the evidence does not support the jurisdictional and disposition order. On review, we determine whether there is any substantial evidence, contradicted or uncontradicted, that supports the judgment. All conflicts in the evidence are resolved in favor of the trial court's decision. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) " 'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.' [Citation.]" (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.)

Section 300, subdivision (c) provides in relevant part that a child comes within the juvenile court's jurisdiction if "[t]he 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 . . . ."

Section 300 subdivision (c) "seeks to protect against abusive behavior that results in severe emotional damage. We are not talking about run-of-the-mill flaws in our parenting styles – we are talking about abusive, neglectful and/or exploitive conduct toward a child which causes any of the serious symptoms identified in the statute." (In re Alexander K. (1993) 14 Cal.App.4th 549, 559.) "In a situation involving parental 'fault,' the petitioner 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." (Id., at p. 557.)

Parental abuse, causing serious emotional harm, was clearly established. Appellant repeatedly accused father of sexually abusing the child and required that Mateo submit to videotaping, questioning, and intrusive physical examinations. During a September 5, 2004 incident, appellant held Mateo's legs apart and videotaped his genital and anal area, Mateo cried, struggled, and begged appellant to stop the videotaping. Appellant questioned Mateo for 50 minutes and told him he would get his bottle when he tells her what his "daddy does." Mental health professionals who viewed the videotape opined that appellant was emotionally abusing Mateo.

Before Mateo was placed in protective custody, he was hitting and kicking appellant and his brother. Doctor Davis reported that Mateo exhibited unusual aggressiveness for his age. During a videotaped interview, Mateo stomped on a doll. While at Doctor Davis's office, Mateo exhibited aggression towards the doctor's dog. In early November 2004, the daycare center reported that Mateo was aggressive and hitting other children.

Although appellant was told by the police, the social worker, the family law court, and health care providers to stop videotaping and interrogating Mateo, appellant continued to traumatize him. The emotional harm was manifested by unusual aggression, crying, and sexualized behavior. Appellant's friend, Reuben Espino, observed Mateo masturbating, sticking his finger up his rectum, hitting, kicking, spitting, scratching, and deliberately hurting people.

Substantial Risk of Serious Emotional Harm

Appellant agues that Mateo has significantly improved and was not at risk of harm at the jurisdictional hearing. "While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

Appellant's reliance on In re Brison C. (2000) 81 Cal.App.4th 1373 is misplaced. There, a nine year old boy (Brison) was the focus of a bitter custody dispute and removed from his parents. Mother falsely claimed that father was molesting Brison. The trial court found that Brison was suffering serious emotional harm and that it would be detrimental to return him to either parent. The Court of Appeal reversed because the evidence did not show "that Brison is seriously emotionally damaged or that he is in danger of becoming so unless jurisdiction is assumed. In fact, in light of the apparent ease with which he adapted to the sudden changes from his mother's care to . . . a foster home, Brison is a remarkably resilient child. At the time of the hearing, he was physically healthy and was performing at or above grade level at school He did not exhibit behavioral abnormalities . . . and his foster care provider has reported no problems." (Id., at pp. 1379-1380.)

Unlike In re Brison C., Mateo continued to suffer emotional problems after he was removed from appellant's custody The foster parent reported that Mateo had a "complete meltdown" and cried and screamed to be with his father. Although Mateo showed some improvement after he was removed from foster care, appellant continued to coach Mateo and make new sexual abuse accusations.

In In re Brison C., supra, the jurisdictional order was reversed because the juvenile court relied on psychological evaluations that were "years out of date." (Id., at p. 1380.) Here, the trial court was provided timely reports and evaluations that Mateo was being emotionally abused and would suffer a substantial risk of harm if returned to appellant. Doctor Davis warned that the emotional abuse would "result in serious negative psychological consequences" for Mateo. A mental health therapist recommended juvenile court intervention as did the doctor who performed the first SART exam.^[2]

At the January 14, 2005 contested hearing, the trial court stated that it was inclined to give appellant the benefit of the doubt and find that DSS had not met its burden of proof. The court continued the hearing to February 18, 2005, during which time appellant was granted unsupervised visitation. Appellant used it as an opportunity to lodge new accusations against father. She told her therapist that she saw a tear above Mateo's anus during a February 6, 2005 unsupervised visit. Appellant claimed that Mateo said, "I don't like it when daddy traps me on the bed."

DSS immediately investigated the referral and determined that the accusations were unfounded. When the case worker attempted to interview appellant, appellant would not answer her phone and cancelled an appointment to meet with the case worker.

In discussing the matter with appellant's therapist, the case worker learned that appellant reported an injury on Mateo's buttocks during a January 10, 2005 supervised visit. Appellant told the visitation supervisor, "I think something is still going on with him. I saw a big tear on him." The supervisor examined Mateo and saw no sores, tears, or injuries. At the hearing on February 22, 2005, appellant denied saying that she saw an anal tear.

The evidence supported the finding that Mateo had been emotionally abused and was at substantial risk of suffering severe emotional harm. (§ 300, subd. (c); e.g., In re Anne P. (1988) 199 Cal.App.3d 183, 198-201 [emotional harm to child resulting from acrimony between feuding parents and unfounded charges of sexual abuse against father].) The case worker reported: "Mateo would not be safe if he was returned to his mother's care. [Appellant] truly believes that Mateo has been molested by his father . . . . [Appellant] appears desperate and anxious. She is extremely emotional and argumentative . . . ." The trial court did not err in concluding that intervention was necessary to protect Mateo from severe emotional abuse and to assure that appellant and father comply with necessary mental health treatment.

Disposition Order

Appellant's assertion that the disposition order is unsupported by the evidence is without merit. Where the trial court finds by clear and convincing evidence that the child faces a substantial risk of harm if left in the care of the custodial parent, it must order the child removed. (§ 361.) If a non-offending, non-custodial parent requests custody, the trial court should place the child with that parent unless the placement would be detrimental. (§ 361.2, subd. (a); In re Katrina C., supra, 201 Cal.App.3d at p. 550.)

The evidence clearly shows that return of Mateo to appellant's custody would pose a substantial risk of danger to his emotional well being. Appellant has repeatedly videotaped and interrogated Mateo about his father and suspected sexual abuse. As reflected in the case worker's report, appellant has no insight how her behavior negatively impacts Mateo and causes emotional harm. Doctor Davis, in a 41 page psychological/custody evaluation, opined that "to allow this child to remain in [appellant's] custody would result in serious negative psychological consequences for Mateo." Similar warnings were made by the family law court, a mental health therapist, the case worker, and Doctor Kusumoto who performed the first SART examination.

The trial court reasonably concluded that appellant was likely to place Mateo at risk of suffering severe emotional harm if Mateo was returned to her care. (See e.g., In re Matthew S. (1996) 41 Cal.App.4th 1311, 1321.) The court found that even if appellant "stopped videotaping[,] she has not stopped her obvious campaign to sabotage Mateo's relationship with his father." Unlike the parents in In re Brison C., supra, who took positive steps to avoid repeating their parenting mistakes, appellant has taken no action to break a clear pattern of emotional abuse.

The judgment (jurisdictional/disposition order) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Teresa Estrada-Mullaney, Judge

Superior Court County of San Luis Obispo

______________________________

Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.

James B. Lindholm, Jr., County Counsel, County of San Luis Obispo; Patricia A. Stevens, Deputy County Counsel, for Respondent.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Apartment Manager Attorneys.

^[1] All statutory references are to the Welfare and Institutions Code,

^[2] In a November 3, 2004 report, Mental Health Therapist Eric Burt recommended that the trial court continue jurisdiction to protect Mateo "from the continuing activities and interventions of mother which involve allegations of child sexual abuse, videotaping, photographing, medical examinations, and police investigations."