Marriage of Erikson CA2/6 ( 2015 )

Filed 6/2/15 Marriage of Erikson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
In re Marriage of KAREN LIEBSCHER 2d Civil No. B255411
ERIKSON and ROLF FORDE ERIKSON. (Super. Ct. No. FL031235)
(San Luis Obispo County)
KAREN LIEBSCHER ERIKSON,
Appellant,
v.
ROLF FORDE ERIKSON,
Respondent.
Karen Liebscher Erikson appeals an order terminating the appointment of
her children's therapist, Suzanne Cholet, and appointing a replacement therapist. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Karen and Rolf were married briefly in 2003.1 Karen obtained a domestic
violence restraining order against Rolf before she gave birth to their son and daughter,
twins, in 2004.
1
We shall refer to Karen Liebscher Erikson and Rolf Forde Erikson by their first names
not from disrespect, but to ease the reader's task.
In 2006, the trial court awarded sole physical and legal custody to Karen,
based partly on Rolf's criminal history, alcohol and drug dependency, and explosive
behavior during visits with the twins. It ordered supervised visitation for Rolf.
The paternal grandmother, Doreen Webb, intervened and sought visitation.
The trial court denied her request because she was unable to control her undermining
behavior toward Karen. By 2011, the trial court record consisted of 18 volumes in this
"highly contested" case.
The record on appeal includes only a fraction of these documents. It omits
a number of findings and orders that may have guided our review of the trial court's
decision to substitute therapists.
In 2009, the trial court appointed Suzanne Cholet, LMFT, as the minors'
therapist. It granted Rolf weekly supervised visits with the children. The record omits
this order, but the parties refer to it.
In 2011, minors' counsel recommended therapeutic visits because the visits
with Rolf were detrimental. In support of the request, Cholet declared, "The visits with
father are not only detrimental to the children, they are counterproductive to forming a
child/parent relationship with [father]." Cholet based her opinion on her weekly
observations of the minors following their visits with Rolf between 2009 and 2011.
The trial court appointed a therapist to conduct therapeutic visits. He
withdrew before conducting any visits, because of Rolf's and Karen's "resistance" to the
process. Rolf had no visits with his children for eight months. The trial court appointed
a replacement therapist, Stephanie Wilson, LMFT, to conduct the therapeutic visits.
Tension later developed between Cholet and Wilson.
First, a disagreement arose between Cholet and minors' counsel about
whether Karen and Rolf's daughter needed a psychological evaluation. Minors' counsel
reported that the daughter, now eight years old, needed to be evaluated by a psychologist
and that the minors' therapist, Cholet, was "adamant that the [daughter] does not require
an evaluation." Minors' counsel reported that disciplinary records from the daughter's
school from 2010 to 2012 recorded 90 instances of behavior, many of which involved her
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use of force against students and some of which involved use of force against staff.
There were 10 notices of suspension between January 2011 and April 2012. The
daughter's teacher reported the daughter's eyes were frequently moving, darting or
rolling, and she "exhibits constant twisting and jerky body movements." The daughter's
current school principal and teacher believed an evaluation would be helpful. Neither
Karen nor Cholet thought an evaluation was necessary. Both perceived that the problem
was bullying at the school. Minors' counsel believed that Cholet was relying on Karen
for information and not communicating with the school. He also asked to be relieved
because Karen had made accusations against him and because all of the parties "are
manipulative."
The trial court did not order an evaluation or relieve minors' counsel, but it
ordered Cholet to remain in contact with the children's school and to address any issues
that might arise. It also ordered the school to communicate with Cholet.
In December 2013, minors' counsel asked the trial court to replace Cholet.
Wilson submitted a declaration in support of the request. She expressed "concern[] that
[Cholet] was not encouraging or helping [the children] to adjust to visitation with their
father, but rather supporting their resistance to it." She wrote, "[W]hat the children
reported to their therapist, Suzanne Cholet, was greatly different than what I observed
during their visits [with Rolf]."
Rolf had not participated in any therapeutic visits in the past seven months.
Counsel declared his "understanding that the therapeutic visits were not progressing as a
result of the children's therapist[], Suzanne Cholet, not encouraging the children's
cooperation with visitation." He offered his opinion that "[t]he therapeutic visits between
[Rolf] and the children, if they continue, will likely not make any progress, unless and
until the children have a therapist that encourages and/or supports the therapeutic
visitation process, and [does] not foster the children's resistance to therapeutic visits."
Counsel declared that Cholet "is allied with the mother" and "has acted to undermine the
visits." He acknowledged that the children had a "long established therapeutic
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relationship" with Cholet, but questioned the "progress, if any" the children had made in
their many years of therapy with her.
Karen opposed the request to replace Cholet. The record does not include
any declaration or testimony submitted from Cholet on the question of her replacement.
Karen wrote, "Ms. Cholet reached out to Ms. Wilson, but initially Ms. Wilson would not
speak with her or share any information with her." Karen wrote that eventually the two
therapists did communicate and agreed to reduce Rolf's visits to one per month until
summertime. Karen wrote, "Rolf had problems communicating with our children long
before Ms. Cholet came on board in 2009." She recounted his criminal history, criticized
his lack of gift giving, and pointed out that "[n]one of the foregoing is the fault of Ms.
Cholet."
The matter was initially set for hearing on December 16, 2013. Karen did
not appear. Rolf and minors' counsel stipulated to continue the matter to February 3,
2014. Karen filed her written opposition on January 6.
At the February 2014 hearing, the trial court terminated Cholet's
appointment and appointed Stephanie Fuller, LMFT, as the minors' therapist. Karen filed
objections to the trial court's proposed findings and order which the court overruled. She
wrote about the relative merits of herself and Rolf as parents. She accused minors'
counsel of violating the children's fundamental rights, engaging in false billing, and filing
false information, among other things. She accused the court of unethical practices. She
wrote that she "was never personally served with anything" related to the December 16
hearing, "and all the documents [she] did receive were mailed." Karen pointed out that
the children had a bond with Cholet and argued it would be "cruel and abusive" to replace
her. She said that minors' counsel had not given Cholet an opportunity to respond to the
charges against her; he had subpoenaed Cholet for the February 3 hearing "but excused
her when she showed." The record does not include a reporter's transcript of the
February 3 hearing.
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DISCUSSION
The record does not support Karen's contention that the trial court abused
its discretion when it replaced the minors' therapist or that Karen did not have notice of
the hearing. The trial court reasonably could have concluded that the order advanced the
best interest of the children. (Fam. Code, § 3190, subd. (a)(2)2; see In re Marriage of
Heath (2004) 122 Cal. App. 4th 444, 448-449.)
Minors' counsel served Karen with his request for an order appointing an
alternate therapist by mail on December 12, 2013, together with Wilson's supporting
declaration. The matter was initially set for hearing December 16, but the trial court
continued it to February 3, 2014. Karen had ample time to respond before the hearing,
and did so in writing on January 6.
The trial court did not abuse its discretion when it replaced Cholet. A trial
court may require a parent or a child who is involved in a custody dispute to participate in
counseling with a licensed health care professional, or other mental health counseling, for
a renewable one-year term if the court finds that the dispute poses a substantial danger to
the best interest of the child and counseling is in the best interest of the child, considering
any history of domestic violence and other factors. (§ 3190.) No one challenged the trial
court's power here to appoint a therapist for the minors.
Karen contends the trial court should not have terminated Cholet's
appointment as the minors' therapist because there was no evidence of "wrongful
conduct" and Cholet had a longstanding relationship with them. "Wrongful conduct," was
not required. The best interest of the child governs appointment of a therapist. (§ 3190,
subd. (a)(2).) The paramount consideration in all matters of child custody and visitation
is the welfare of the child. (Sanchez v. Sanchez (1961) 55 Cal. 2d 118, 121.) The trial
court has wide discretion to determine the best interest of the child. (§ 3011 [factors to
consider in determining best interest of child]; see In re Marriage of Brown & Yana
(2006) 37 Cal. 4th 947, 955.)
2
All statutory references are to the Family Code.
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The trial court reasonably could have concluded that its decision to replace
the therapist "advanced the 'best interest'" of the minors. (In re Marriage of Burgess
(1996) 13 Cal. 4th 25, 32.) A trial court must specifically design an order for counseling
pursuant to section 3190 to facilitate communication between the parties regarding the
child's best interests, reduce conflict regarding custody or visitation, and improve the
quality of the parenting skills of each parent. (§ 3191.) Implicit in the trial court's order
was its determination that therapy with Cholet was not advancing these goals. The partial
record on appeal supports its determination. Wilson, the therapist charged with
supervising therapeutic visits, raised a concern that Cholet might be encouraging the
children to resist the therapeutic visits. Cholet had previously declared her view that
visits with Rolf were detrimental, and there is no evidence that her views changed after
therapeutic visits commenced. Communication between Cholet and Wilson was clearly
strained, as demonstrated by the declarations of Wilson, minors' counsel, and Karen.
There was a perception that Cholet was aligned with Karen. Whether that perception was
real or imagined, the trial court rationally could have concluded that it interfered with its
goal of reducing conflict and improving Rolf's parenting skills. It did not abuse its
discretion when it replaced the minors' therapist.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Gayle L. Peron, Judge
Superior Court County of San Luis Obispo
______________________________
Karen Liebescher Erikson, in pro. per., for Appellant.
Edward L. Somogyi, APLC, Edward L. Somogyi for Respondent.
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