Marriage of Mark and Yolanda B.

Filed 2/14/07  Marriage of Mark and Yolanda B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of San Diego County, Edward B. Huntington, Judge.  Reversed with directions.

            In this case we reverse an order changing custody of the parties' eight-year-old son A.  The undisputed record shows A. is extremely apprehensive about being in respondent's presence and exhibits angry, aggressive and sometimes dangerous behavior when compelled to attend counseling sessions with her.  Moreover, no expert has offered any opinion which would support the conclusion that as opposed to joint therapy with respondent, the immediate transfer of custody to respondent could be accomplished without substantial risk to A.'s mental and physical health.  Given this record the trial court could not conclude the immediate transfer of custody was in A.'s best interest.

FACTUAL AND PROCEDURAL BACKGROUND

            A., the subject of this custody dispute, was born in May 1998.  Four months after A. was born, his mother respondent Yolanda B. G. (Yolanda) was incarcerated on theft charges.  At or near the time of Yolanda's release, A.'s father appellant Mark B. (Mark) filed a dissolution petition.

            Mark and Yolanda have engaged in a bitter custody dispute over A. and his older sister B.  On January 23, 2001, following a custody hearing, Yolanda attempted to run Mark and his attorney over with her car.  Mark's attorney was struck by the car and seriously injured.  Yolanda pled guilty to assault with a deadly weapon on February 6, 2001, and on April 11, 2001, she was sentenced to a three-year prison term.

            After Yolanda was released from prison in 2003, Mark obtained a restraining order against her which prevented her from having any contact with him, his new wife, or their children.  Notwithstanding the restraining order, in 2003 Yolanda began an effort to regain custody of A. and B.  Mark vigorously resisted those efforts.  Over the following two years, the court conducted a series of hearings and ordered that Yolanda participate in therapy with Dr. Meloy.  The trial court also ordered that A. participate in therapy.  However, the trial court did not order that Yolanda be given the right to any contact with A. or B.

            Because of B.'s resistance to any reunification with her mother, Yolanda accepted the fact that she will not have any relationship with her daughter.  However, she has continued her effort to develop a relationship with A.  A. has been diagnosed with attention deficit disorder and at the time of the proceedings we review, he was being home schooled.

            In March 2005 A.'s counsel recommended the trial court order that A. participate in a schedule of therapy with two psychologists, Dr. Sparta and Dr. Volcani.  Dr. Sparta was A.'s individual therapist.  Dr. Sparta, declined to make any recommendation about joint therapy for A. and Yolanda.  A.'s counsel nonetheless recommended that Dr. Volcani be retained to conduct joint therapy sessions with Yolanda.  Counsel's recommendation was based on the fact that Yolanda had regularly participated in court ordered therapy.

            Importantly, as of March 2005 neither Yolanda's own psychologist nor A.'s counsel believed she had yet made the progress needed to have any visitation with A., let alone custody.  A.'s counsel stated:  " I do not believe that Mrs. B. fulfilled the terms of her counseling such that she can have a normal relationship with this child.  I agree with Dr. Meloy that it will take roughly 50 sessions before she is at this kind of a point.

            " And based upon my view of that, she is not ready to have a normal relationship, I wouldn't make that recommendation, and I'm not making that recommendation.  I want to emphasize that.  I don't think she is ready to have a normal relationship."

            Mark did not cooperate in the therapy schedule the court ordered.  This lack of cooperation led the court to issue a second order in October 2005, in which the court stated it would accelerate the therapy schedule if Mark did not comply with a renewed therapy schedule with Dr. Volcani.

            A. participated in therapy sessions with Dr. Volcani on October 7, 9, 14 and  28, 2005.  Only A. and his father were at those sessions.  On November 14, 2005, Mark brought A. to the first therapy session scheduled with Yolanda.  When A. saw Yolanda, A. ran from the office and Mark chased him.  They did not return to Dr. Volcani's office that day.  They did however return on November 28, 2005, for another joint session; A. ran away from this session as well.  After these sessions with Dr. Volcani, Mark took A. back to Dr. Sparta for evaluation.

            On December 12, 2005, the trial court conducted a review hearing.  At the review hearing, A.'s counsel reported that he had spoken with Dr. Sparta.  Dr. Sparta told A.'s counsel that A. has a genuine fear of Yolanda and A.'s attitude was different than in the past.  According to counsel:  " Dr. Sparta says that the emotional state of the child currently is different . . .  different in a negative way, different in the sense that the child is experiencing what he believes to be fear and that the child appears to be -- using Dr. Sparta's word -- fragile, and that there -- he is concerned with the child's well-being if we continue to have or attempt to have the conjoint sessions.  So that's what the professionals say."   Dr. Sparta advised A.'s counsel that he believed further joint sessions should be deferred.  Dr. Sparta also suggested that all parties be subjected to a full custody evaluation.

            A.'s counsel opined that the cause of A.'s fear was the influence of Mark.  When the trial court adopted that opinion, A.'s counsel made the following statement:  " I think that -- I think there is a reasonable possibility that that's the case.  I think what is lacking in the sense is there being a mental health professional who, after significant evaluation, has come to that conclusion."

            A.'s counsel also spoke to Dr. Volcani who believed that notwithstanding A.'s fears, the joint sessions should continue.  The trial court ordered bi-weekly sessions with Dr. Volcani.  The court also stated if sessions were missed, it would consider changing custody.  The court stated:  " I have a feeling one of the quickest ways to solve the problem would be to change custody and quit screwing around with this thing.  I have a feeling inside of half a day that the problems would be solved if father were kept out of it.  [¶]  .  .  .  [¶]

            " So far, reliance on you and your client has not resulted in any forward progress in this case in a year-and-a-half."

            Finally, the court stated:  " I'm not today going to change custody, but, boy I'm just not far from it." ^[1]

            Mark brought A. to therapy sessions with Dr. Volcani and Yolanda in January and February 2006. Although A. did not run from the sessions, he did not cooperate in the sessions.  He either stood by himself or told Dr. Volcani he did not want to be there.

            Based on her contention Mark was responsible for the lack of progress in the sessions with Dr. Volcani and citing the trial court's statement of December 12, 2005, on January 27, 2006, Yolanda filed a motion to award her physical custody of A.  The trial court set the hearing on shortened notice for February 17, 2006.

            In response to Yolanda's motion, Mark attempted to notice Yolanda's deposition as well as her therapist's deposition.  Yolanda sought and obtained an order from the trial court preventing this discovery.

            On February 17, 2006, the trial court conducted the custody hearing.  At the hearing, A.'s counsel did not oppose or support Yolanda's motion.   The trial court stated:  " I don't perceive that leaving A. where he is is ever going to reunite him with his mother.  He is entitled to have that.  It has nothing to do with his father.  It has nothing to do with his mother.  It's in A.'s best interest to have contact with his mother.  It hasn't happened, and it's totally been within the control of the father."   Mark filed a notice of appeal and petition for a writ of supersedeas.  We eventually granted the supersedeas and ordered an expedited appeal.

DISCUSSION

I

            In determining custody and visitation issues, " the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children."   (Fam. Code,^[2] §  3020, subd. (a).)  Although under section 3020, subdivision (b), the state has also adopted a policy which assures that children have frequent and continuing contact with both parents, section 3020, subdivision (c), provides:  " Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members."   Thus, in making its custody determination the trial court was required to give primary consideration to A.'s health and safety.

            At the time of the February 17, 2006, hearing, the most any of the professionals who had contact with A. would suggest as appropriate for the then-seven-year-old boy was carefully supervised therapeutic sessions with Yolanda.  Dr. Sparta, who was the only professional with a fully developed therapeutic relationship with the child, opposed even that contact at that point in time.  We also note A. was an infant the last time he lived with Yolanda.  Importantly, there is the undisputed evidence of A.'s extreme behavior when compelled to be in Yolanda's presence, which included his running from the sessions.  Finally, there is Dr. Sparta's unheeded recommendation that all parties be subjected to a custody evaluation.  On this undisputed record, an immediate change of custody posed a substantial risk to A.'s mental and physical health.  Given the nature and immediacy of the risk, the trial court could not reasonably conclude the potential benefit of a relationship with Yolanda nonetheless justified a change in physical custody, especially in light of the trial court's failure to obtain a custody evaluation of the parties.

            In this regard we recognize the trial court concluded Mark had engaged in a course of willful defiance of the court's effort to reunite A. and Yolanda and A.'s extreme behavior was in large measure the result of Mark's attempts to alienate A. from his mother.  There are two reasons this conclusion will not support the trial court's change of custody order.  First, as a factual matter, there is little in the record which supports the trial court's conclusion about the source of A.'s hostility toward Yolanda.  Obviously, neither Mark nor A. made any statements in court or to any of the professionals involved in this matter which would support that conclusion.  The absence of such direct evidence from either Mark or A. is not surprising or dispositive.  More importantly, however, none of the professionals, in particular Dr. Sparta, made any conclusions about the source of A.'s profound fear of and alienation toward Yolanda.  Rather, the trial court's conclusion was apparently based solely on the bitter nature of the parties' dispute, Mark's initial unwillingness to cooperate in bringing A. to the joint therapy sessions and A.'s extreme reaction when the trial court compelled the sessions.  In short, the inference of active and improper alienation on Mark's behalf, which the trial court apparently drew from the overall circumstances of the case, is not supported in the record.

            However, even assuming the trial court's conclusion about Mark's responsibility for A.'s behavior had some stronger foundation, that conclusion would not justify an order changing custody.  It is axiomatic that in obtaining a parent's compliance with its orders, a trial court may not jeopardize the well-being of a child.  (§  3020, subd. (c).)  As we have noted, here the record is undisputed that given A.'s mental state, the immediate transfer of custody would create grave risks to A.'s mental and physical well-being.  If the court believed Mark was willfully defying its orders, it had means of obtaining his compliance short of endangering A.'s well-being.  (See Moffat v. Moffat (1980) 27 Cal.3d 645, 652.)

II

            In addition to the dispute between the parties, the record here also discloses the trial judge has become very much attached to his perceptions of the parties and their roles in this contentious litigation; so much so that the court advised Mark an appeal would not likely be fruitful.  In light of this circumstance, on remand we direct the trial court to reassign this matter to a new trial judge.

            We also have concerns about the role played by minor's counsel.  By the time of the December 2005 review hearing and the February 2006 custody hearing, it was clear to all parties A. was having serious difficulty with the court's reunification plans and A.'s treating therapist had grave reservations about proceeding with those plans.  Nonetheless, at those hearings counsel seemed to argue Yolanda's participation in counseling, her frustration at the lack of progress in reuniting with her son and Mark's apparent lack of cooperation justified the court's plan to reunify A. and Yolanda without professional help for the child or appropriate home studies.  In the context of the emotional turmoil A. was experiencing and the reservations expressed by Dr. Sparta, these arguments suggest some confusion on the part of counsel as to his obligations.  Under section 3151, subdivision (a), minor's counsel is charged with representing A.'s best interests as opposed to protecting Yolanda's rights.  On remand we are confident the trial court will take measures to ensure that A.'s counsel fully comprehends his primary obligation is to protect A.'s best interests.

            On remand we also direct the trial court's attention to Dr. Sparta's recommendation the parties submit to a custody evaluation.  Such an evaluation will provide the court with invaluable assistance in resolving the difficult issues presented in this case.

            Order reversed with directions.

BENKE, J.

WE CONCUR:

                          McCONNELL, P. J.

                                         AARON, J.

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^[1]           Mark filed a notice of appeal from the December 12, 2005, order.  We consolidated that appeal with his later appeal from the order giving Yolanda custody of A.  Although we have reviewed the merits of the December 12, 2005, order, in light of the trial court's comments about its future intentions, the December 12, 2005, was not appealable.  (See In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589.)

^[2]           All further statutory references are to the Family Code unless otherwise specified.