K.T. v. L.H. CA4/1 ( 2022 )

Filed 2/3/22 K.T. v. L.H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
K. T., D078689
Respondent,
v. (Super. Ct. No. 18FL014744C)
L. H.,
Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Marcella O. McLaughlin, Judge. Reversed.
Law Office of Anthony J. Boucek and Anthony J. Boucek for Appellant.
No appearance for Respondent.
L. H. (Mother) and K. T. (Father) were divorced in 2019 and share a
young son. Mother challenges an order of the family court requiring her to
undergo a mental health evaluation and participate in counseling until
released by the therapist. Father did not file a response to Mother’s opening
brief. Because the court’s order failed to make the findings required by
Family Code section 3190, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in 2016 and their son was born in
2017. The minor was born deaf, and at the time of the proceedings at issue,
was under the care of several medical specialists and enrolled in a school for
the hearing impaired. The parties finalized their divorce in 2019. The
judgment of dissolution included custody and visitation orders giving Mother,
who resides in San Diego, primary physical custody, with regular visitation
for Father, who resides in Glendale.
In 2020, Father filed a request for order (RFO) seeking full legal and
physical custody of the minor. Prior to filing the RFO, Father and Mother
participated in mediation with family court services. The mediator
recommended joint legal custody and that Mother continue primary physical
custody of the minor and that the visitation schedule remain the same.
Father filed a declaration in support of his RFO. In it, he alleged
Mother had instructed the minor’s education and health care providers to
withhold information from him. Father also alleged that Mother was not
following the existing custody and visitation order, and in some instances
preventing Father from seeing the minor. Father further asserted that after
his visits with the minor, the transitions back to Mother were extremely
difficult and the minor did not want to return to Mother.
Father stated that Mother was scheduled to be incarcerated later that
year for several months and that she was refusing to allow Father to care for
their son during that time. Father also alleged Mother was abusing the
judicial system, filing serial restraining orders to attempt to prevent Father
from being with the minor, and falsely reporting to the police that Father
abused her. Father also explained that Mother had been arrested in 2018 for
throwing a spoon at him, and again in 2019 for child endangerment (the
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charge for which she faced incarceration). Based on these arrests, Father
asked the court to impose a presumption under Family Code section 30441
that it was not in the minor’s best interest for Mother to maintain custody.
Mother filed a response to Father’s declaration. She argued the court
should follow the recommendation of the mediator and maintain the existing
custody and visitation order. She asserted Father was preventing her from
having video calls with the minor when he was in Father’s care, and accused
Father of filing a false police report alleging she harmed the minor based on
“a very small bruise [o]n his knee.” Mother stated she had recently sought a
fifth restraining order because of Father’s false accusation to the police.
Mother also described the circumstances of the child endangerment
conviction, explaining that in the fall of 2018, while still married to Father,
she feared he was going to kidnap the minor so she left him in the car while
she went into a tanning salon. An employee called the police and Mother was
charged a year later by the San Diego City Attorney. She was sentenced to
20 days in jail and ordered to complete parenting classes. Mother also
explained she was recently granted house arrest in place of jail time.
Mother also asserted Father had a drug and alcohol problem, and that
he suffered from severe mental illness requiring prescription medication,
which she said Father also abused. Mother stated she feared for the minor’s
safety while in Father’s care because of his addiction. Mother also alleged
she was being harassed by Father’s girlfriend and mother. Finally, she
stated Father was not equipped to care for the minor because he had never
participated in the minor’s medical treatment or education.
A hearing on Father’s RFO took place over two days by
videoconference. Both parents appeared at the hearing and were self-
1 Subsequent statutory references are to the Family Code.
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represented. On the second hearing date, the court also considered Mother’s
most recent request for a restraining order.
During the hearing, Father reiterated the assertions made in his
declaration. He also argued Mother should be precluded from custody and
unsupervised visitation under both sections 3030 and 3044. Father asserted
that Mother would not support his relationship with the minor, that she was
endangering the minor by dating men with criminal records, and that her
anger and inability to control her emotions were detrimental to the child.
During Father’s testimony and argument, Mother was repeatedly
admonished by the court not to interrupt and several times the court muted
her microphone. The court expressed frustration with Mother throughout the
two hearing days.
During her testimony and argument, Mother reiterated the points
made in her declaration opposing the RFO. She asserted the court should
follow the recommendation of the mediator, who had investigated the
allegations made by Father. Mother told the court Father and his mother
had wanted to remove Mother from the minor’s life since his birth. She also
argued that Father’s RFO was motivated by his desire to have weekends free
to spend time with his new girlfriend, and that the minor was cared for only
by the paternal grandmother when he was with Father.
At the conclusion of the hearing, the court stated that it was denying
the RFO for now, but that in the future it envisioned ordering a custody
arrangement that gave the parties equal time with the minor. The court
stated that because of Mother’s prior conviction for child endangerment,
section 3030 applied. However, the court found there was no significant risk
to the minor if he remained in Mother’s care. The court also found the
presumption under section 3044 applied, but that it was in the minor’s best
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interest to remain in the care of Mother and that the removal of the minor
from her care would be detrimental to him. The court noted, however, that it
appeared Mother was using the “temporary restraining order as a
coparenting tool of offense and defense,” which was not appropriate or
healthy for the minor.2 The court indicated that Mother’s continued inability
to peacefully coparent with Father could be a basis to modify the parenting
plan in the future.
At the conclusion of its ruling, without any prior indication it would do
so, the court ordered Mother to “engage in a mental health evaluation to
address any mental health issues or concerns and to follow the direction of
the mental health evaluator.” The court also ordered Mother to participate in
“counseling with a licensed mental health practitioner until released by the
therapist,” and that issues to be addressed in counseling should “include any
recommendations made by a mental health evaluator, as well as regulating
emotions, high-conflict relationships, and stress management.” Thereafter, a
final order setting forth the court’s rulings was entered.
DISCUSSION
On appeal, Mother challenges only the court’s orders requiring her to
undergo a mental health evaluation and to engage in counseling. She argues
the imposition of these orders without notice was a violation of her due
process rights and that to impose them, the court was required to make
specific findings under section 3190. Father did not file a response to
Mother’s appeal.
Section 3190 authorizes a family court to order a parent involved in a
custody or visitation dispute to participate in outpatient counseling for not
2 The court also denied Mother’s request for a restraining order. In this
ruling, the court remarked on the “high-conflict,” “dysfunctional” nature of
the parties’ relationship.
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more than one year, provided the court makes specific findings that (1) the
dispute poses a substantial danger to the best interest of the child and the
counseling is in the best interest of the child, and (2) the financial burden
created by the order for counseling does not otherwise jeopardize the parent’s
other financial obligations; the court must also set forth its reasons for
making these findings. (§ 3190, subds. (a) & (d).) In addition, once the court
has made a finding that the order for counseling does not jeopardize the
parent’s other financial obligations, it must fix the cost of the counseling and
order that the costs “be borne by the parties in the proportions the court
deems reasonable.” (§ 3190, subd. (c).)
Section 3190 and its precursor, former Civil Code section 4608.1
(repealed by Stats. 1992, ch. 162, § 3, eff. Jan. 1, 1994), were enacted to
address due process concerns in requiring a parent to undergo involuntary
therapy or counseling in a family court setting outside of dependency
jurisdiction. (In re Chantal S. (1996) 13 Cal.4th 196, 207, 210–211; In re
Katherine M. (1994) 27 Cal.App.4th 91, 99–100 (Katherine M.).) Chief
concerns to the Legislature were that the family court counseling order be of
limited duration and automatically expire; that the court make express
findings about the circumstances warranting a counseling order; and that the
court fix the costs of the court-ordered counseling and apportion the cost
among the parties so as not to jeopardize their other financial obligations.
(Katherine M., supra, 27 Cal.App.4th at p. 100.)
Here, the court failed to address section 3190 or make the findings
required by the provision. Of concern, the order sets no duration and instead
states Mother is required to undergo counseling “until released by the
therapist.” Similar open-ended counseling orders have been found to violate
a parent’s due process rights. (See In re Marriage of Matthews (1980) 101
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Cal.App.3d 811, 817–818 [absent legislative authorization for counseling of
indefinite duration as a condition of visitation, such order violates parent’s
due process rights] and Camacho v. Camacho (1985) 173 Cal.App.3d 214, 221
[same].)
In addition, the order at issue does not fix the cost of the counseling or
apportion it among Mother and Father. Thus, even if we were to imply
findings from the hearing transcript that the custody dispute posed a
substantial danger to the best interests of the minor and that ordering
Mother to participate in counseling would be in his best interests, the order
mandating counseling still does not comport with section 3190 and cannot
stand. (Katherine M., supra, 27 Cal.App.4th at p. 100.) Accordingly, we
reverse the order to the extent it requires Mother to undergo involuntary
counseling.
DISPOSITION
The custody and visitation order is reversed to the extent it requires
Mother to participate in a mental health evaluation and counseling. Our
decision is without prejudice to further proceedings in the trial court for an
order regarding counseling, if such an order is warranted in the present
circumstances of the parties. The order is affirmed in all other respects.
Costs on appeal are awarded to Mother.
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McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
IRION, J.
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