In re Troy B.

Filed 9/12/07 In re Troy B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn Mackel, Commissioner. Affirmed.

Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

__________________

Nancy B., the mother of Troy B., appeals from the order at disposition hearing in which the court ordered visitation between Nancy B. and her son to be monitored by a therapist in a therapeutic setting, yet made no provision for the Department of Children and Family Services (DCFS) to pay for the monitor-therapist or an order for department- paid-for conjoint counseling for Nancy and her son. Nancy B. argues the reunification services were legally inadequate and that the visitation order violated Welfare and Institutions Code[1]section 362.1. As we shall explain, the court did not abuse its discretion in failing to order conjoint counseling. In addition, sufficient evidence in the record supported the courts finding that a therapist was needed to monitor the visitation and that Nancy had the means to pay for it. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Troy B., born in October 1996, is the son of Nancy B. and David D. David D. and Nancy B. have never been married. Troy B. was conceived during a period when David D. was separated from his wife, Denise D. David and his wife reconciled after Troy B. was born. Troy B. resided with Nancy B. and visited with David D. In late 2004, after a series of custody and child support hearings, visitation between Troy B. and David D. and child support payments were formalized.

In early March 2005, Troy B. came to the attention of the DCFS after a referral indicating David D. and Troy B.s half brother Stephen D. were sexually inappropriate with Troy B. The initial petition also alleged that David D. exposed Troy B. to inappropriate and pornographic material, left Troy B. outside with a dangerous dog and that David D. had a history of alcohol and drug abuse. The petition also alleged Nancy B. had a history of substance abuse.

At the initial detention hearing, Troy B. was released to Nancy B. The court ordered all parties to undergo Evidence Code section 730 evaluations, to attend CSAP (child sexual abuse program) and parenting classes. Both Nancy B. and David D. were also required to provide random clean drug and alcohol tests.

The DCFSs dispositional report revealed that Nancy B. worked at various movie and television studios as a laborer in set construction. Nancy B. submitted evidence that she had been a member of the Studio Utility Employees Union for 14 years.

Investigation by the DCFS indicated that Nancy B. had a family history of mental illness, that she suffered mental instability and deep emotional problems, that she had been institutionalized for a period, had been estranged from certain members of her family, had attempted suicide twice and had suicidal ideations, had been sexually molested as a child and raped by a family acquaintance as a teenager. Nancy B.s sister told the department that Nancy B. had been diagnosed as bi-polar.[2]

In May 2005 the DCFS amended the petition to include additional allegations against Nancy B. of emotional abuse, including her history of unresolved mental and emotional problems. The amended petition further alleged Nancy B. had made an escalating series of false child abuse allegations involving similar themes of masturbation;[3]that she had taken Troy B. to the school nurse and had brought along a blow-up action figure doll so that Troy B. could demonstrate to the nurse how he had been touched. It also included an allegation that Nancy B. had subjected her son to an unnecessary blood test for communicable diseases.

On May 10, 2005, the court ordered Troy B. detained from his mother and placed him in foster care.

The Evidence Code section 730 report by Dr. Kramon detailed Nancy B.s mental and emotional history. Dr. Kramon opined that Nancy B. suffered from paranoid ideation, was emotionally unstable, had limited insight and judgment and was obsessed with sexual abuse issues. He also reported Nancy B.s belief that various members of her family and David D.s family had molested Troy B. to get back at her and that there was a conspiracy among them to make her seem like a liar. Dr. Kramon believed that it was unlikely Troy B. had been molested as he had claimed. Dr. Kramon also expressed a concern that Troy B. was unclear as to the truth and had been affected by the paranoid thinking of his mother and was at risk of emotional abuse by his mother. Dr. Kramon noted that the allegations of abuse arose after the parties had obtained a family law order formalizing David D.s visitation and believed that the claims of abuse had been made up to ensure that Nancy B. and Troy B. could stay together. Dr. Kramon recommend that David D. and Troy B. be allowed conjoint therapy to fix their relationship and allow them to reconcile. He further opined that David D. and Troy B. be reunified and that David D. become the long term primary caretaker of the child. As for Nancy B., Dr. Kramon recommended that she participate in individual therapy and undergo additional psychiatric evaluations.

The section 300 petition was amended two additional times in August 2005 and October 2005. In the amendments the sexual abuse allegations against David D. and Troy B.s half brother were deleted and new allegations were added pertaining to Nancy B., including that she suffered from emotional and psychological conditions which caused her to believe that Troy B. had been molested by various relatives and to communicate this belief to Troy B. and that she had persuaded him that he had been molested. The October 2005 petition included an allegation that Nancy B. had created an environment of severe family alienation for her son and that she had called Troy B. while his pet guinea pig was dying so he could hear the animals last breaths and that she had told Troy B. the pet had died of a broken heart because Troy B. had been separated from him.

In September 2005, Nancy B. submitted a letter from her individual therapist, Dr. Zadok, indicating that his belief that Nancy was a normal person who did not suffer from any disorders. Her therapist also recommended that Nancy B. not be required to attend any other counseling or therapy as that would interfere with his work with Nancy B.

The contested adjudication hearing was held in November 2005. Nancy B. represented herself in the proceeding. David D., his wife and Troy B. testified at the hearing. Troy B. told the court that he had been molested by numerous relatives on many occasions. The DCFS presented Dr. Kramons report into evidence. In her closing argument Nancy B. argued that the DCFS did not believe Troy B.s claims of molestation because both she and Troy B. had supported Michael Jackson. She argued that she had produced evidence that her son had been molested and was only acting out of her interest to protect him. At the conclusion of the hearing the court sustained allegations against Nancy B., and the allegations against David D. were dismissed. The court continued the matter for the disposition and ordered Troy B. to remain in foster care and to participate in conjoint counseling with his father. The court also ordered conjoint counseling for Nancy B. and Troy B. with Dr. Korn.

In March 2006, the court ordered another Evidence Code section 730 evaluation for the parties with Dr. Collister to determine what could be done to repair the relationship between Troy B. and his father.

In a June 2006 letter to the court from Dr. Korn the conjoint therapist for Troy B. and his mother, Dr. Korn indicated he had participated in 12 consultations between Nancy and her son between March and June. Dr. Korn stated Nancy B. and her son were bonded to each other and Nancy B. missed him intensely. Dr. Korn also noted however that Nancy B. had refused to engage in any therapy or therapeutic treatment concerning the relationship. He noted that she continually referred to thosethe social workers, the court and David D.as conspiring to keep her apart from her son and that she would continue to fight the forces of evil. Dr. Korn reported Nancy B. lacked insight into her behavior and had engaged in instances during the sessions of parental alienation by encouraging Troy B. to talk about what David D. had done to him. Based on his interaction with her, Dr. Korn provisionally diagnosed Nancy B. as bi-polar, manic with paranoid features.

Dr. Collister also submitted his Evidence Code section 730 evaluation.[4] Dr. Collister opined that in view of the graphic details concerning the alleged molestation it was unlikely that Troy B. had not been abusedDr. Collister believed either that Troy B. had been abused or had a fairly evolved, extensional delusional system which affected his behaviors. Dr. Collisters evaluation of Nancy B. indicated a diagnosis of a bi-polar condition with paranoid ideation.

In mid-June 2006, the court ordered David D. and Troy B. to begin unmonitored visitation for four hours. The DCFS was given discretion to liberalize visits to eight hours and unmonitored weekend visits.

A July 26, 2006, report indicated that during monitored phone visitation Nancy B. had stated to Troy B. I cant believe they are letting you be with this molester. Upon learning of these comments, the court admonished Nancy B. not to make inappropriate comments to her son and ordered that visitation between Nancy B. and Troy B. take place in a monitored therapeutic setting. Specifically, the court ordered that the visits be monitored by the conjoint therapist (Dr. Korn).

On August 7, 2006, Nancy B.s counsel walked-on the matter for the court to clarify who could serve as the monitor for the visits and who should pay for the monitor. The court ordered that Nancy B.s visits take place in a therapeutic setting with Ronald Korn as the monitor. The court clarified that Dr. Korn was to serve as a monitor to intervene and redirect inappropriate conversation, and not to act as a therapist.

The disposition proceeding commenced on August 14, 2006. A report submitted by the DCFS indicated that it had provided Nancy B. with a list of approved therapists in the San Fernando Valley, but that Nancy said that she had thrown the list away. The report also noted that Dr. Korns fee was not $150 an hour as Nancy B. had said, but that it was $25 an hour to serve as a monitor. The DCFS also indicated, however, that Dr. Korn had stated that he was unwilling to serve in the function as a monitor.

Nancy B. submitted a report from her therapist Dr. Zadok pronouncing her sane and describing her as a person of high integrity. The DCFS recommended Troy B. be placed with his father and submitted a report from David D. and Troy B.s conjoint therapist indicating that father and son had made gradual progress in their relationship. The court ordered Troy B. placed with David D. and ordered family maintenance services.

Nancy B. was offered reunification services, individual counseling, parenting and monitored visitation in a therapeutic setting. Concerning the therapist-monitored visitation, which had not occurred for a couple of weeks prior to the hearing, the court inquired:

Are you [Nancy B.] unwilling to have them monitored in a therapeutic setting, is that the reason they have not taken place? Nancy B. indicated that after Dr. Korn had written a report which she felt was unfavorable to her, she did not want to have conjoint counseling with him, and was opposed to the therapeutic setting for visits. Nonetheless she indicated that she would seek conjoint counseling with the child and would stay in individual therapy.

The court indicated that it was not impressed with her current therapist Dr. Zadok and recommended that she seek individual therapy through a court recognized program like that at Childrens Institute or a Dr. Hebe Lien. Nancy B.s counsel then asked whether the court would permit her to have conjoint counseling to occur there. The court stated that she could but that she would have to pay for it. Specifically the court observed that if her private insurance no longer covered it, then they will add sessions to your insurance provider [sic] that they were [in] therapeutic setting and that they were needed. If you will do so that then more sessions can take place in the individual and conjoint with Troy and probably would not be at the expense by the Department. At least you are working and you are having a consistent income. The court also noted that although Dr. Korn would not agree to serve as the therapeutic monitor, the costs of such monitoring would be $25 an hour. The court ordered the DCFS to identify a therapist (or MFT licensed social worker) who could monitor the visits.

Nancy B. appeals from the dispositional order.

DISCUSSION

Nancy B.s appeal focuses on the adequacy of the reunification services and visitation order. Specifically with respect to the reunification services she contends that the court erred when it failed to order a department-paid for conjoint therapy for her and Troy B. Concerning visitation, she maintains that the courts order that her visitation take place in a therapeutic setting monitored by a therapist violated section 362.1. As we shall explain, the court did not abuse its discretion in crafting the dispositional order with respect to reunification services and visitation.

Pursuant to section 361.2, the court has discretion to order reunification services for a noncustodial parent when a child has been removed from a custodial parent and a noncustodial parent assumes custody of the child. (Welf. & Inst. Code, 361.2, subds. (a) & (b); see Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 628-629.) Subdivision (a) of section 361.2 states that [w]hen a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. If the court places the child with the noncustodial parent subject to juvenile court supervision, the court may order that reunification services be provided to either the custodial or noncustodial parent or to both parents, with review hearings to be held to ascertain which parent should have custody. ( 361.2, subd. (b)(2).) Concomitantly, if a child is placed with a previously noncustodial parent under section 361.2, the juvenile court has the discretion not to provide reunification services to the previously custodial parent. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179; see also In re Patricia T. (2001) 91 Cal.App.4th 400, 406; Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 628; In re Erika W. (1994) 28 Cal.App.4th 470, 475.) The fact that section 361.2 permits the juvenile court to place a child with a previously noncustodial parent and deny services to the previously custodial parent demonstrates that reunification services are not required to be provided to a parent who will not be taking custody of the children. (Robert L. v. Superior Court, supra, 45 Cal.App.4th at p. 628.)

Indeed, the court has broad discretion to make virtually any order deemed necessary for the well-being of the child. (In re Sergio C. (1999) 70 Cal.App.4th 957, 961.) Nonetheless in exercising its discretion to offer reunification services and visitation the court should tailor its efforts to provide services to fit the unique family circumstances. (In re John B. (1984) 159 Cal.App.3d 268, 276; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1792.) This court will not reverse the juvenile dependency courts determination concerning the provision of reunification services or visitation absent a clear abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) When two or more inferences can reasonably be deduced from the facts, the reviewing court has not authority to substitute its decision for that of the lower court. (In re Stephanie M. (1994) 7 Cal.App.4th 295, 318-319.) With these principles in mind we consider Nancy B.s claims.

A.                 Conjoint Counseling

Before this court, Nancy B. asserts the courts reunification plan was legally inadequate because it failed to order conjoint counseling paid for by the department. We do not agree.

At the disposition hearing Nancy B. requested conjoint counseling with Troy B. Though an order for conjoint counseling did not appear in the final minute order, the courts comments during the hearing implied Nancy B. could have the conjoint counseling if she or her insurance company paid for it.[5]

In our view, the court did not abuse its broad discretion by failing to order conjoint counseling for mother and son at county expense. While the court had discretion to order such counseling and would not have erred had it done so, its failure to order conjoint counseling did not under the circumstances presented to the court at the disposition proceeding exceed the bounds of reason. Indeed, the evidence in the record showed that Troy B. and Nancy B. shared a close bond and their relationship did not suffer from parental alienation. In contrast conjoint counseling for Troy B. and his father was deemed necessary because their relationship was in dire need of repair. Thus, we cannot say the court erred in failing to order conjoint counseling as part of the reunification plan.

As the DCFS points out, should circumstances change and the need for conjoint counseling arise at some later point during the proceedings, Nancy B. could seek a modification of the services order by means of a section 388 petition.

B.                Therapist-Monitored Visitation

Nancy B. further claims the courts visitation order which required a therapist monitor Nancy B.s visits with Troy B. in a therapeutic setting and implied that she pay for the monitor-therapist violated section 362.1, which states that visitation shall be as frequent as possible, consistent with the well-being of the child. (Welf. & Inst. Code 362.1, subd. (a)(1)(A).)

Preliminarily we note that Nancy B.s reliance on 362.1 is misplaced. Section 362.1 applies only where the child is placed in foster care, not where as here the child has been placed with a parent. Consequently section 362.1 has no application to this case.

In addition, the record contains sufficient evidence to support the courts finding that the visitation needed to be monitored by a licensed therapist or MFT/social worker.[6]On more than one occasion during her monitored visits and telephone conversations with her son, Nancy B. engaged in conduct and/or made comments which the monitors felt amounted to parental alienation. She attempted to have Troy B. talk about what his father had allegedly done to him; she referred to David D. as a molester; and she discussed the case and her perceived persecution by David D., the social worker or the court during the visits.

Moreover, there is also evidence in the record to support the implied finding Nancy B. had the means to pay for the monitor. The court observed based on evidence offered by the DCFS (from Dr. Korn), that the cost for such monitoring would be $25 an hour. In addition, the court also noted that Nancy B. was working, and had consistent income. There was evidence in the record to support the courts finding with respect to her employmentNancy B. worked in the movie/television industry in set construction for 14 years and was a member of the Studio Utility Employees Union.

In view of all of the foregoing we cannot say that the court abused its broad discretion in crafting the visitation and reunification services order.

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J. JOHNSON, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] In addition, the investigation revealed that Nancy B. had taken Troy B. to Santa Maria to attend Michael Jacksons trial and that they had visited Mr. Jacksons Neverland Ranch. Nancy B. had also been quoted in the press as supporting Michael Jackson and proclaiming that he was innocent.

[3] In interviews in March through May 2005, Troy B. made additional disclosures of sexual abuse and named additional abusers including David D.s wife Denise D., Denises brother, and Nancy B.s sisters ex-husband. All of the incidents were described similarly, all as involving acts of masturbation in front of Troy B., and inappropriate touching in the bathroom. Troy B. claimed that the others, such as his father, maternal grandmother or maternal aunt were in the next room when the abuse occurred and did nothing to stop it.

[4] Dr. Collister did not interview David.

[5] The discussion at the hearing concerning Nancy B.s request for conjoint counseling and her ability to pay transpired as follows:

The Court: I am not impressed [with Dr. Zadok]. I would prefer that the mother consider going to childrens Institute or Dr. Hebelean [sic] or I can't think of other names, but I would prefer she go to someone who has an expertise and ability in bringing about progress in difficult situations that has been recognized by this court and I dont think that she will be making a lot of progress with an MFT which is what [Mr. Zadok.]

[Nancy B.s Counsel]: Would the court permit the conjoint to occur there. With a therapist for Troy that is an absolutely separate person even though this mother is able to have that.

The Court: I have here its the ability, if the parties pay. The mother would like to seek individual therapy but with a licensed therapist approved by the Department of Children and Family Services. If her insurance will no longer cover it, my understanding they will add sessions to your insurance provider [sic] that they were therapeutic [in a] setting and that they were needed. If you will do so that then more sessions can take place in the individual and conjoint with Troy and probably would not be at the expense by the department. At least you are working and you are having a consistent income.

[6] Contrary to what Nancy B. suggest in her opening brief, at the August 14, 2006, hearing the court did not order the visits be monitored by a specific conjoint therapist or a psychologist.