In re L.W. CA2/8 ( 2014 )

Filed 9/15/14 In re L.W. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT
In re L.W., a Person Coming Under the
Juvenile Court Law. B252903
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK99610)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
GEORGIA S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County.
Debra Losnick, Commissioner. Affirmed.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
___________________________
Georgia S., mother, appeals from the juvenile court’s order asserting dependency
jurisdiction over her daughter, L.W., and the disposition order awarding father Mark W.
sole legal and physical custody and granting mother only monitored visitation.
The juvenile court found true allegations that mother emotionally abused L.W. by
coaching her to falsely accuse father’s girlfriend of sexual abuse and by “enmeshing”
L.W. in mother’s conflicts with father. Mother contends substantial evidence did not
support the jurisdiction and disposition orders. Mother further contends the juvenile
court prejudicially erred in excluding evidence based on the psychotherapist-patient
privilege and hearsay. We affirm the juvenile court orders.
FACTUAL AND PROCEDURAL BACKGROUND
Five-year-old L.W. first came to the attention of the Los Angeles County
Department of Children and Family Services (DCFS) in February 2013. Mother reported
to DCFS that L.W. had witnessed domestic violence between mother and father when
they were still together; they had been separated since March 2011. Mother explained a
restraining order she had obtained against father would soon expire. Mother said she
secured the restraining order after father threatened her in L.W.’s presence. The
detention report recounted: “It was reported that the child had free visitation with father
before the incident occurred however the referral stated that child told mother she is
afraid of father because child told mother that the father would not feed her when child
was visiting father. In addition, mother reported that father has left child alone in the car
when child was with father, however it was noted that the reporter has no information
regarding when this occurred, how many times it occurred or when it occurred. The
referral stated that the mother stated that she was afraid when the restraining order
expires that child would have to visit with the father.” DCFS closed the referral as
unfounded.
The Initial Detention, Detention Report and Dependency Petition
In April 2013, DCFS received another referral which was reported as follows:
“ ‘[T]he caller reports that child told mother that her father’s girlfriend poked her in her
belly button, her vagina and rubbed her breasts (chest).’ ” A case social worker spoke
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with father. He denied any abuse or neglect and said L.W. had not told him of any abuse
by his girlfriend. The social worker next met with mother and L.W. Before the social
worker took L.W. to an interview room to speak with her alone, mother told L.W. to tell
the truth and to tell the social worker everything she had told mother. According to the
social worker, L.W. was clean, well-groomed, appropriately dressed, and had no visible
marks or bruises. However, the social worker observed L.W. was “quiet and withdrawn,”
and she was “not as outgoing as she was when [the social worker] first met [her] during
the prior referral investigation” in February. L.W. told the social worker that when she
was taking a bath at father’s girlfriend’s house with the girlfriend’s two children, the
girlfriend touched her. Upon further questioning, L.W. told the social worker the
girlfriend had washed her stomach and chest after she got applesauce on her body, and
the girlfriend used soap and a sponge. L.W. denied being scared during the bath or after,
and she said she felt safe with mother, father, and father’s girlfriend. At that point, L.W.
said she did not want to answer any more questions. She told the social worker: “
‘Mommy asks a lot of questions.’ ” When the social worker asked what kind of
questions, L.W. replied: “ ‘Mommy tells me to say things. . . . Mommy says bad things
about daddy.’ ” L.W. “denied all forms of abuse/neglect.”
The social worker noted that in February 2013, she had observed that mother
discussed father, and her allegations against father, in front of L.W. In the April 2013
discussion with the social worker, mother reported L.W. said father’s girlfriend poked her
in the stomach and touched her chest and vagina. Mother asked L.W. if the girlfriend had
poked her on the inside of the vagina, and L.W. said yes. Mother said L.W. was not
sleeping and went to mother’s bed at night because she was afraid. Mother asked if L.W.
told the social worker about “the ‘sexual abuse.’ ” When the social worker indicated
L.W. had not provided the same information as the referral, mother said L.W. was afraid
because father told her not to tell anyone.
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Father’s girlfriend denied the allegations and denied that L.W. even had a bath at
her house. According to the girlfriend, L.W. said, “ ‘It’s all my fault. Mommy is telling
everyone that [girlfriend] gave me a bath,’ ” and, “ ‘Mommy is trying to make me say
bad things about Daddy to the police.’ ”
The social worker spoke with L.W.’s therapist, Cynthia Della Ripa. The detention
report recounted: “[Ripa] reported that child is showing anxiety in the presence of
Mother. [Ripa] stated that child has not disclosed any abuse or neglect. [Ripa] stated
mother continues to want to be in the sessions with [L.W.]. [Ripa] reported that mother
does not understand that play therapy is appropriate as mother wants to know what child
discloses in the therapy session. [Ripa] has concerns for child’s emotional well being for
child as child is being put in the middle.” The report later quoted Ripa as stating:
“ ‘Child did not disclose sexual abuse to me. I have observed child demonstrating
separation anxiety and attachment issues during play therapy.’ ”
Around 10 days after the April referral, mother called the social worker, and,
according to the detention report, demanded to know why father’s girlfriend, who she
described as a “sexual predator,” was allowed to have contact with L.W. Mother
suggested the social worker was not doing her job in keeping L.W. safe from the
girlfriend, and “wanted to know what the police were doing and how come the police had
not taken her child for a ‘rape exam.’” Mother told the social worker she had called the
police but was told they were not investigating because no crime had been committed.
Mother asserted that because of the social worker it was now too late for L.W. to have a
rape exam. Mother subsequently called the social worker’s supervisor and claimed the
social worker was not doing a “proper job,” thus L.W. could not be examined for “sexual
abuse evidence.” Mother threatened to file a complaint against the social worker.
DCFS arranged an informal meeting with mother and father to determine if they
could reach an agreement “to stop any future chance of emotional abuse” of L.W.
Although mother agreed to attend, on May 1, the day of the meeting, mother informed the
social worker by telephone that she was at the North Hollywood police station making a
report of sexual abuse. Mother said “she did not understand why the police station would
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not take the report even though she had tried several times to make a report of sexual
abuse against [father’s girlfriend]. Mother reported that she would stay at the police
station and wait until someone took the report.” L.W. was with mother. Police later told
the social worker a report had been taken and L.W. was being interviewed. A police
officer told the social worker a report was filed after mother said there was penetration.
The officer also told the social worker that mother had tried “numerous times” to file a
police report but “one was not taken as the allegations from mother appeared to be a
bathing issue rather than sexual abuse.” Father and his girlfriend went to the police
station after the meeting with DCFS. A law enforcement officer subsequently told the
social worker father and the girlfriend were interviewed and “no charges were pressed.”
During the meeting mother missed, father and his girlfriend claimed L.W. had not
taken a bath at the girlfriend’s house. Father asserted mother made false allegations
because she was “unable to move on with her life,” and could not accept she and father
would not get back together. He indicated mother had secured a temporary restraining
order against him, but when they went to family court the order was “thrown out.” Father
also said mother brought L.W. to court and “tried to get the judge to allow [L.W.] to
make a statement against father.”
Later in May, the social worker spoke with a detective investigating the sexual
abuse allegations. The detective said that although at first it seemed the investigation
would be concluded quickly because the conduct appeared to be appropriate, mother later
said there was “ ‘digital penetration to rectum and vagina,’ ” so L.W. and mother would
have to be re-interviewed. The detention report did not indicate whether another
interview in fact took place.
On May 10, father reported an incident to DCFS that had occurred at L.W.’s
preschool. According to father, at L.W.’s request he attended a Mother’s Day Tea at the
school, to which all parents and families had been invited. When mother arrived she was
displeased that father was there because she felt it was “her day.” Mother told father:
“Give me my fucking child you child molester, or I will call the police.” A few days
later, the director of the preschool largely confirmed father’s account to the social
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worker. The director said that after mother’s outburst, L.W. was “hysterically crying.”
The next school day, L.W. repeated mother’s statement—“give me my fucking
daughter”— to the school director. When the director asked L.W. how “that made her
feel,” L.W. responded “it made her feel sad.” The detention report indicated the director
“stated that this is affecting the child. [The director] reported that [L.W.’s] behavior has
changed in school. Child is acting out by being defiant and not listening at school. . . .
[L.W.] told [the director,] ‘The court says I can only spend one night at my [Dad’s].’
[The director] believes that child is being told what to say or hearing [mother] talk about
the situation. . . . [The director] reported that child has told her numerous times that
mother goes to court a lot.”
The director also told the social worker L.W. cried because she wanted to be with
father. She said mother had approached her on “a few separate occasions” to encourage
L.W. to tell the director or other teachers “ ‘what is going on at home and if she is scared
of anything.’ ” Mother then added as an aside to the director, “ ‘ because I know you are
a mandate[d] reporter.’ ” The director further reported mother had at times tried to get
the school not to release L.W. to father. She opined: “ ‘[L.W.] is caught in the middle
and [is] being used as a pawn by mother.’ ”
According to the social worker, at a May 16 team decision meeting, mother
accused father’s girlfriend’s nine-year-old daughter of “ ‘digitally penetrating [L.W.’s]
rectum and vagina.’ ”1 Father said mother told L.W. that father was dead and this made
L.W. “sad and depressed.” When the supervising social worker “confronted” mother
with this claim, “mother did not deny the allegation.” After the meeting, L.W. was to
have a weekend visit with father. Mother called the social worker and asked to whom
1 On May 13, 2013, the family law court issued written findings and an order in a
custody matter between mother and father, following a March 6, 2013 hearing. The court
denied mother’s request for temporary restraining orders. It awarded the parents joint
legal custody. The court ordered shared physical custody, with father to have L.W. three
weekday evenings, every weekend, and alternating holidays.
6
L.W. should report any new allegations. Mother said she was concerned “ ‘because
things could have happened over the weekend while child was in father’s care.’ ”
DCFS detained L.W. from mother and released her to father. On May 23, DCFS
filed a dependency petition alleging jurisdiction under Welfare and Institutions Code
section 300, subdivision (c).2 The petition alleged mother emotionally abused L.W. by
forcing her to provide “false and misleading information of sexual abuse” by father’s
girlfriend, “resulting in repeated interviews of the child by DCFS and law enforcement.”
The petition further alleged mother “made disparaging remarks” about father to L.W.,
and mother “enmeshed” L.W. in mother’s conflicts with father. The petition asserted:
“The mother’s emotional abuse of the child has resulted in the child demonstrating
anxiety and emotional distress requiring psychological therapeutic services. Such
emotional abuse of the child on the part of the mother places the child at substantial risk
of suffering serious emotional damage as evidenced by severe anxiety, depression,
withdrawal and aggressive behavior toward herself or others.”
In the accompanying detention report, DCFS summarized its reasoning for
recommending continued detention:
“DCFS is under the impression that mother is making false allegations
against the father in order to alienate child from her father. It appears that
mother is coaching the child to make false statements in an effort to alienate
the child from her father. Mother continues to increase the intensity of
allegations when she does not get the response that she desires. She has
brought her concerns to mandated reporters, therapists, teachers, law
enforcement[,] family court and DCFS and none of the agencies have taken
any action against the father because they believe that the allegations are
false. . . . During the investigation and subsequent TDM, it became
apparent that mother has the intention of making further allegations so that
a child abuse report would be generated. Mother indicated that the
previous day she disclosed to a licensed therapist at an intake interview that
there was history of domestic violence between her and father and child
[L.W.] was a witness to it. Mother informed [the social worker] that the
counselor indicated that a child abuse report would be generated and child
2 All further statutory references are to the Welfare and Institutions Code unless
otherwise noted.
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would need to be interviewed again. Mother was adamant about making
calls until someone starts listening to her ‘cry for help.’ ”
The juvenile court detained L.W.
Jurisdiction and Disposition Report
The jurisdiction and disposition report repeated much of the information contained
in the detention report. In an interview for the report, father told DCFS his relationship
with mother began to deteriorate when he informed her he had a new girlfriend. At that
point mother told the preschool that L.W.’s last name had been changed so that she no
longer had father’s last name. Mother also began alleging father had engaged in
domestic violence against her, and she sought a temporary restraining order. Father
denied any domestic violence. Father also again denied that his girlfriend gave L.W. a
bath, and indicated mother had previously falsely alleged he left L.W. alone in a car.
The report recounted additional information from the preschool director, including
that she “noticed that [L.W.] now has become more angry and aggressive toward other
children, also reacting to them and telling on each other.” The director stated she never
suspected any abuse, or had any concerns about “any abuse issues.” However, mother
had on one occasion told the director “somebody had been touching her daughter and
then she [mother] became really emotional.”
Jurisdiction and Disposition Hearing
The jurisdiction and disposition hearing was conducted over several days between
June and October 2013. In the midst of the jurisdiction hearing, DCFS requested that the
court order mother not to contact L.W.’s school. DCFS reported father had enrolled
L.W. in a magnet school. A school administrator told a DCFS social worker that mother
called the school five times in one day in an attempt to confirm that L.W. was enrolled at
the school. The administrator said mother originally called the school and stated she had
received a call from the office stating L.W. was missing, so mother wanted to confirm
that L.W. was in fact at school. Mother asked for a meeting with the principal “to explain
how her daughter had been taken away from her by the father and that her rights were
being violated.” The administrator indicated mother called 15 to 20 times the next day.
8
L.W. was briefly disenrolled from the school because staff were concerned the school
was not L.W.’s “home school,” and felt mother was a threat to the office staff and other
students. The court ordered mother not to have any further contact with the school.
At the hearing, Mother testified she had concerns that L.W. had been touched
inappropriately because of what L.W. had told her; she indicated she did not know if it
was sexual abuse or not. According to mother, on April 15, L.W. first volunteered that
father’s girlfriend gave her a bath. Mother told L.W. she did not want her naked in front
of other people, and father should have given her a bath. Mother called father later that
day. He said L.W. was lying, there was no bath, but then said L.W. took a bath with the
girlfriend’s daughters. A few days later L.W. brought up the bath again. L.W. told
mother she did not like it when the girlfriend gave her a bath and poked her belly button.
Mother demonstrated from the witness stand how L.W. reenacted the belly button
poking. Later that evening, L.W. brought up the incident again and said she did not like
it when the girlfriend “does this,” which mother demonstrated was a crotch grabbing
motion, repeated three times.
Mother testified she took L.W. to a therapy appointment the next day and told
Ripa what L.W. had said. As mother recounted and demonstrated at the hearing, in
response to Ripa’s questions, L.W. indicated with gestures that the girlfriend made an
“upward motion from the crotch along side to about the stomach, middle,” which L.W.
said hurt. L.W. also showed the therapist that the girlfriend grabbed at L.W.’s chest.
L.W. said father told her to tell mother there was no bath, and to “play a trick” on mother
to make her happy.
According to mother, Ripa suggested mother talk to the police about what L.W.
had disclosed. Mother said she made only one report to the police about L.W. suffering
some type of harm while in father’s care. She denied making any complaints to DCFS
and denied ever calling the child abuse hotline. She admitted she let L.W.’s preschool
know that an investigation was taking place, but denied encouraging L.W. to tell the
preschool teachers “what is going on.” Mother testified L.W. was interviewed only twice
about the allegations: by the DCFS social worker and once at the police station. She said
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she took L.W. to the courthouse on the day of the restraining order hearing on the advice
of her attorney who suggested L.W. might be called as a witness, and because she had no
other childcare arrangements.
Mother denied speaking about father in a negative manner in front of L.W.
However, mother admitted the Mother’s Day Tea incident at the preschool.3 She asserted
she only spoke after father, who was holding L.W., refused to let her go as mother was
trying to leave. Mother acknowledged she had been inappropriate on that occasion, but
also said she spoke in a whispered or hushed tone and she did not believe L.W. heard her.
She also admitted L.W. was crying during the incident, but she attributed the crying to
L.W. not being ready to leave the party. She denied forcing L.W. to make false
allegations of sexual abuse. Mother also denied calling the police and requesting that
L.W. have a rape exam. She claimed many of the statements attributed to her in the
detention report were taken out of context, were incorrect, or were false. She denied ever
claiming father’s girlfriend’s daughter digitally penetrated L.W.
Mother testified she believed she had done the best she could and “reported what
[she] was told.” Mother explained: “But whether it’s sexual abuse or not, that’s out of
my scope as a parent. I don’t know. That’s for DCFS or authorities whether it is law
enforcement to decide on that or the therapist.” Mother testified she first took L.W. to a
therapist in March 2013 because L.W. was having difficulty with mother and father’s
separation.
A police officer who interviewed L.W. testified L.W. told the officers father’s
girlfriend: “ ‘rubbed my pee-pee’. . . . ‘I said stop,’ and she said ‘okay.’ And then [the
girlfriend] said, ‘I am sorry.’ . . . . ‘[The girlfriend] ‘told me she was sorry for washing
my pee-pee.’ ” The officer further testified that L.W. told the officers the girlfriend had
touched L.W.’s “breasts” or “nipples,” with what the officer described as a “slight
3 Although mother initially testified she said something to the effect of “give me my
fucking child, you child molester,” she later testified she said, “give me my fucking
daughter, or I will call the police,” and indicated she did not recall calling father a child
molester.
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twisting motion.” The officer did not think L.W. had been coached. He said L.W.
seemed angry during the interview, but he could not tell at whom the anger was directed
or the source.
Therapist Testimony Issues
When mother’s counsel called Ripa as a witness, L.W.’s counsel informed the
court she would not waive the psychotherapist-patient privilege and was prepared to
object on those grounds. Mother’s counsel argued the privilege had already been waived
because Ripa was quoted in the detention and jurisdiction reports, and no one had
objected to those statements being considered at the detention hearing. The court
disagreed. Ripa’s counsel further indicated Ripa would not be authorized to testify
regarding any child abuse reports unless ordered to do so, pursuant to Penal Code section
11167.5.4
Ripa testified that before May 23, the day the dependency petition was filed, she
never suspected mother was emotionally abusing L.W. Mother’s counsel asked Ripa if
she ever called the DCFS hotline and reported that L.W. was sexually abused. The court
sustained objections by counsel for DCFS and L.W. on the ground the information was
“confidential.”5 Ripa testified mother told her L.W. had shared “some information with
her that she [mother] was concerned about and was hoping [L.W.] can share with me in
session.” She did not recall if mother used the term “sexual abuse.” The court sustained
L.W.’s counsel’s privilege objection to the question of whether Ripa discussed possible
sexual abuse with L.W. The court also sustained objections to the questions: Did Ripa
inform mother by text that she [Ripa] had reported possible sexual abuse to the DCFS
4 Under Penal Code sections 11167.5 and 11167, reports made by statutorily
mandated reporters, and the identity of a person making such a report, are confidential
and may be disclosed only under limited circumstances.
5 However, Ripa was allowed to testify as to whether she had ever called the DCFS
hotline in any case. Her answer was, “not that I recall.” The juvenile court sustained an
objection to mother’s counsel’s question attempting to clarify whether her answer
included this case.
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hotline; did sexual abuse come out in any type of therapy; was it accurate to state that
Ripa told the social worker in May 2013 that L.W. disclosed sexual abuse to her [Ripa];
and did Ripa recall what she discussed with the DCFS social worker.6
Ripa testified she did not make the statement attributed to her in the detention
report that “child did not disclose sexual abuse to me.” Instead she was asked if sexual
abuse came out during play therapy, and Ripa responded that it did not; what came out of
play therapy was separation anxiety. Ripa never saw any conduct by mother she thought
was inappropriate. She recalled that in April, L.W. disclosed “some information about
being touched inappropriately.”7 Ripa opined mother’s anxiety over the custody dispute
with father had affected L.W. “a little bit.” However she never witnessed any
psychological or emotional abuse by mother. She had not come to the conclusion that
mother had psychologically or emotionally abused L.W. She opined that L.W.’s
relationship with mother had overall been positive. She observed L.W. display some
anxiety in play therapy, which she thought was “a result of the anxiety she feels as a
result of the relationship between her mother and father.”
The social worker who wrote the jurisdiction and disposition report testified she
talked with Ripa about the case in general, but only after she wrote the report. When
asked whether Ripa told the social worker she was the reporting party to DCFS about the
sexual abuse allegation, counsel for DCFS objected the information was confidential.
The court sustained the objection. The court also sustained hearsay objections to the
questions: “What did [Ripa] tell you about the case?” and “Did [Ripa] tell you
anything . . . that would be exculpatory for my client?” The social worker testified Ripa
said L.W. reported “some type of abuse” by father’s girlfriend.
6 The court also sustained Evidence Code section 352 or hearsay objections to
questions about when father consented to have Ripa treat L.W., and what Ripa told father
about why mother sought counseling for L.W.
7 Ripa provided this testimony in response to questioning from L.W.’s counsel.
When mother’s counsel attempted to ask follow up questions on redirect, the court
sustained objections to the questions.
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Juvenile Court Ruling
After the evidence was submitted, the juvenile court concluded there was “plenty
of evidence that this child is acting in an untoward fashion. She’s changed her behavior.
The mother has gone to . . . the police a number of times, the school a number of times,
back to the police, and anyone else, frankly, that will listen, including the Department, to
try and show that somehow this is a bad dad, and he is hurting her child or his girlfriend
when it didn’t work with the father. Frankly, the only one hurting the child is the
mother.” The court described mother’s testimony as “incredible to me, and I don’t
believe that in a positive way.” The court further stated it had “absolutely no doubt” that
the section 300, subdivision (c) allegation was true by a preponderance of the evidence.
The court declared L.W. a dependent of the court under section 300, subdivision (c), then
terminated jurisdiction with an order awarding father sole legal and physical custody.
The court ordered a minimum of five hours per week of monitored visitation for mother.
Mother’s appeal followed.
DISCUSSION
I. Substantial Evidence Supported the Jurisdiction Order
Mother contends there was insufficient evidence for the juvenile court to find
L.W. was a person described by section 300, subdivision (c). We disagree.
“We affirm a juvenile court’s jurisdictional and dispositional findings if they are
supported by substantial evidence. [Citation.] ‘In making this determination, we draw all
reasonable inferences from the evidence to support the findings and orders of the
dependency court; we review the record in the light most favorable to the court’s
determinations; and we note that issues of fact and credibility are the province of the trial
court.’ [Citation.]” (In re A.J. (2011) 197 Cal. App. 4th 1095, 1103 (A.J.).)
Under section 300, subdivision (c), the juvenile court may assert dependency
jurisdiction over a child when “the 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
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of the conduct of the parent or guardian or who has no parent or guardian capable of
providing appropriate care.” “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.” (In re Alexander K. (1993) 14
Cal. App. 4th 549, 557.)
There was substantial evidence that mother’s conduct placed L.W. at substantial
risk of suffering serious emotional harm. Even before the bath incident with father’s
girlfriend, mother had involved L.W. in the custody dispute with father. Mother told
DCFS she feared for L.W. to visit with father once a restraining order expired; DCFS
concluded the referral was unfounded. Mother’s request for a restraining order against
father was denied after a hearing, but mother admitted she was prepared to make L.W.
available as a witness in the custody matter. Mother encouraged L.W. to confide in her
teachers, and, without any apparent basis, suggested to the teachers that L.W. might
reveal something to them they would be required to report as mandated reporters.
Mother tried to get the preschool not to release L.W. to father, and, according to father,
mother falsely told the school L.W.’s name had changed so that she no longer had
father’s last name.
Once the bath incident took place, there was evidence mother’s response was, or
became, entirely disproportionate to the alleged conduct. According to mother, after
L.W. first disclosed inappropriate touching, she had L.W. disclose this information to her
therapist, Ripa. Once a corresponding DCFS referral was generated, and L.W. was
interviewed, L.W. did not describe inappropriate touching to the social worker. Yet,
mother did not let the matter rest. Instead, mother subsequently described father’s
girlfriend to DCFS as a “sexual predator,” and blamed police and DCFS for failing to
seek out or conduct a “rape exam.”
Despite the ongoing DCFS investigation and L.W.’s failure to describe
inappropriate touching to DCFS, mother subsequently filed a police report. A police
officer told DCFS that mother tried numerous times to file a report but it was not taken.
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At that point the allegations of inappropriate touching for the first time included rectal
and vaginal digital penetration. Mother told L.W.’s preschool director there had been
inappropriate touching. After losing her temper, mother called father a “child molester”
in the presence of L.W. and others. There was evidence mother told L.W. father was
dead. Even after DCFS was involved, and L.W. was to spend a weekend with father
pursuant to the custody order, mother asked DCFS how L.W. should report any new
allegations, suggesting mother anticipated there would be additional claims to report,
despite the absence of problems or cause for concern before the bath incident. When
mother testified at the jurisdiction hearing, she denied many of the troubling statements
attributed to her in the detention report. However, the juvenile court did not find her
testimony credible.
L.W. told the social worker that mother asked a lot of questions, said bad things
about father, and mother told her to “say things.” In context, it is reasonable to infer that
L.W. meant mother told her to say negative things related to father. According to father’s
girlfriend, L.W. said mother was trying to make her say bad things about father to the
police. Father reported mother’s comments that he was dead made L.W. sad and
depressed. The preschool director said L.W. had become angry and aggressive toward
other children “since all of this started.”
Thus, there was substantial evidence mother attempted to coerce L.W. into making
statements to authorities that were either false or exaggerated. There was also evidence
that, rather than shielding L.W. from the parental discord, mother repeatedly exposed her
to it. There was evidence that L.W. was already experiencing negative behavioral
changes as a result. The trial court could reasonably conclude mother’s harmful coaching
and exaggeration placed L.W. at substantial risk of suffering serious emotional damage.
(See In re Christopher C. (2010) 182 Cal. App. 4th 73, 84-85 (Christopher C.) [substantial
evidence of risk of substantial emotional harm where parents coached children to make
allegations of sexual abuse and used them as “weapons in an ongoing familial fight”].)
The relevant caselaw applying section 300, subdivision (c) does not mandate a
different result. For example, in In re Alexander K., supra, while there was evidence the
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child displayed emotionally troubled behavior (id. at pp. 552-553, 554), the Court of
Appeal concluded the record lacked any evidence the child’s behavior was the result of
the father’s conduct. (Id. at p. 559.) There was no evidence the father engaged in any
abusive behavior. In contrast, here there was evidence that mother’s conduct was
harmful to L.W. and placed her at risk of harm. Causation was established in this case.
This case is more similar to A.J. In A.J., there were child abuse referrals made
alleging the father pushed the mother out of a moving car while the child was in the car,
and that the father had abducted the child. The mother also told a social worker the father
raped and molested the child. The reports were shown to be false. (A.J., at pp. 1097-
1098.) The child told a social worker her parents argued and the mother usually started
the argument, but she denied that the parents engaged in any physical violence. The child
also told the social worker she heard the mother threaten to get the father in trouble by
making false allegations against him. (Id. at p. 1098.) The mother’s family described her
as unstable. (Id. at pp. 1099-1100.)
Before the jurisdiction hearing took place, the mother left disparaging messages on
the father’s cell phone and threatened to call the police and have him arrested. (A.J., at
p. 1101.) The mother later obtained a temporary restraining order from the family court
that denied the father any visitation with the child. The mother then attempted to have
the police remove the child from the father’s home. The child told police the mother was
not supposed to be at the father’s house, and she did not want to go with the mother. As a
result of the incident, the child suffered several nightmares, was afraid of the mother, and
refused to visit her. (Id. at pp. 1101-1102.) The juvenile court declared the child a
dependent child, then terminated jurisdiction with an award of sole physical custody to
the father, joint legal custody, and monitored visits for the mother.
On appeal, the reviewing court found substantial evidence supported jurisdiction
under section 300, subdivision (c). The court noted the child experienced severe anxiety
and emotional damage because of the mother’s conduct, illustrated by her nightmares,
fear of the mother, and her belief that the mother was crazy. (A.J., at p. 1104.) The court
further concluded the evidence established the child was at substantial risk of suffering
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serious emotional damage from the mother’s abusive conduct, including her repeated
false accusations against the father, some of which the child heard, her disparaging
comments about the father, and the mother’s attempt to have the police remove the child
from the father’s custody under false pretenses. (Id. at p. 1104.) The court explained that
unlike the parents in In re Brison C. (2000) 81 Cal. App. 4th 1373 (Brison C.), the mother
had never recognized her inappropriate behavior or expressed a willingness to change.8
(A.J., supra, at pp. 1105-1106; see also Christopher C., supra,182 Cal.App.4th at p. 85
[distinguishing Brison C. on ground that parents had ignored the substantial risk of
emotional damage to children caused by their conduct].) Dependency jurisdiction and
removal were appropriate.
We recognize the facts of A.J. are more extreme than those presented in this case.
Still, we find the A.J. court’s reasoning instructive. As in A.J., here mother either
falsified or significantly exaggerated alleged misconduct on the part of father’s girlfriend
and initiated a chain of events that resulted in L.W. having to repeat the details of the
bath incident multiple times. Mother expressed her discord with father in L.W.’s
presence and involved her in that conflict by, in L.W.’s own words, trying to make her
say bad things about father. Although L.W. had not experienced nightmares like the
child in A.J., she expressed sadness to father about mother’s comments, the preschool
director noted a negative change in L.W.’s behavior, and L.W. reacted to mother’s
outburst at the preschool with hysterical crying, according to one account. Further, as in
A.J., and unlike the parents in Brison C., mother did not recognize her inappropriate
behavior or express a willingness to change. As in A.J., the juvenile court could find,
8 The A.J. court also questioned the soundness of the conclusion in Brison C. that
the child displayed no signs of emotional damage. The A.J. court noted the child in
Brison C. “feared his father, had suicidal ideation if forced to visit or live with him, and
suffered nightmares. [Citation.] The conflict between his parents caused him ‘upset,
confusion and gastrointestinal distress.’ [Citation.]” (A.J., at pp. 1105-1106.) However,
the court in A.J. was not required to expressly disagree with Brison C. due to the factual
differences between the two cases, as explained above. (A.J., at p. 1106.)
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based on the evidence, that mother’s conduct placed L.W. at substantial risk of serious
emotional harm.
Likewise, in In re Matthew S. (1996) 41 Cal. App. 4th 1311, the appellate court
found substantial evidence supported a finding that the mother’s violent delusions
involving her son placed him at substantial risk of suffering serious emotional damage,
even though he had not yet been harmed. The mother had delusions that the child’s penis
had been mutilated and that she murdered the treating physician when she found her son
in a septic state at the hospital. Acting on these delusions, the mother took the child for a
urological examination. On another occasion, she pulled down his pants to make sure his
genitals were intact. (Id. at p. 1314.) The court explained the mother brought
“a foreboding sense of dread, danger and catastrophe to the lives of her children.” (Id. at
p. 1320.) Although the child had been able to cope with the delusions, the court noted he
was confused by them, and did not speak up out of fear of aggravating the mother’s
condition. Because the mother forced him to undergo an embarrassing and invasive
examination as a response to her delusions, the son suffered “the indignity and
embarrassment of the medical examination.” (Id. at p. 1321.) The court noted that the
child’s reluctance to talk about his feelings or seek out assistance reflected “withdrawal
and it points to the need for court supervision.” (Ibid.)
While in this case there is no evidence that mother is suffering extreme mental or
emotional problems, the case is similar to Matthew S. in that mother sought an invasive
and uncomfortable investigation of the bath incident, without it appearing to be
warranted. While mother disputes the accuracy of the DCFS reports, there was evidence
that mother expressed dismay at the lack of a forensic investigation, and that she
persisted in seeking police involvement even after DCFS was already involved and the
police initially declined to even accept a report. Further, mother displayed a pattern of
involving L.W. in her conflict with father. L.W. volunteered to the social worker that
mother asked a lot of questions, said bad things about father, and told L.W. to “say
things.” As in Matthew S., the juvenile court could find that although L.W. had not as yet
18
suffered harm due to mother’s conduct, substantial evidence indicated a substantial risk
of future serious emotional harm.
We therefore affirm the juvenile court’s jurisdiction order.
II. Substantial Evidence Supported the Disposition Order
We also conclude substantial evidence supported the juvenile court’s disposition
order.
A. Mother’s Argument is Not Forfeited
As an initial matter, we reject DCFS’s argument that mother forfeited a challenge
to the disposition order by submitting on the juvenile court’s tentative, thereby inviting
any error. After the jurisdiction hearing, the court indicated it wished to proceed with
disposition, however it understood that mother’s counsel had argued mother was not
given notice that DCFS would seek to close the case. The court said it would leave it up
to mother’s counsel to decide if he wished to set a separate disposition hearing. After a
recess, the court asked mother’s counsel how mother wished to proceed. At that point,
mother’s counsel said mother would submit on the court’s tentative order. Under these
circumstances, we disagree that the record suggests mother acquiesced in the juvenile
court’s order. Instead, the most reasonable interpretation is that mother agreed the court
could proceed with disposition without further argument or a separate hearing.
While submitting on a social worker’s recommendation may waive a parent’s right
to challenge a juvenile court decision accepting the recommendation (In re N.S. (2002)
97 Cal. App. 4th 167, 170), in general “[s]ubmission on a tentative ruling is neutral; it
conveys neither agreement nor disagreement with the analysis.” (Mundy v. Lenc (2012)
203 Cal. App. 4th 1401, 1406.) Moreover, “[a]lthough a parent who submits on a
particular report or record acquiesces to the evidence, the parent preserves the right to
challenge the sufficiency of the evidence to support a particular legal conclusion.” (In re
N.S., at p. 170.) Thus, we consider the merits of mother’s challenge to the court’s
disposition orders.
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B. Substantial Evidence Supported the Dispositional Order of Removal and
Custody and Visitation Orders Upon Termination of Jurisdiction
“On appeal from a dispositional order removing a child from a parent we apply the
substantial evidence standard of review, keeping in mind that the trial court was required
to make its order based on the higher standard of clear and convincing evidence.
[Citation.] [¶] Under section 361, subdivision (c)(1) children may not be removed from
their home ‘unless the juvenile court finds clear and convincing evidence’ of a substantial
danger to the children’s physical health, safety, protection, or physical or emotional well-
being ‘and there are no reasonable means’ for protecting the children other than removal
from their home. The statute ‘is clear and specific: Even though children may be
dependents of the juvenile court, they shall not be removed from the home in which they
are residing at the time of the petition unless there is clear and convincing evidence of a
substantial danger to the child’s physical health, safety, protection, or physical or
emotional well-being and there are no “reasonable means” by which the child can be
protected without removal.’ [Citation.]” (In re Ashly F. (2014) 225 Cal. App. 4th 803,
809.) We review the court’s custody and visitation orders issued upon termination of
jurisdiction for abuse of discretion. (Bridget A. v. Superior Court (2007) 148
Cal. App. 4th 285, 300.)
Here, substantial evidence supported a finding that L.W. was at substantial risk of
harm if returned home and there were no reasonable means to protect her without
removal. The harm to L.W. arose out of mother’s repeated efforts to generate the
involvement of the authorities in her conflict with father, by using L.W. This began with
the February referral made to DCFS on the eve of the expiration of a restraining order,
and mother’s handling of the bath incident. Irrespective of the source of the DCFS
referral regarding the bath, mother appeared to exaggerate the significance of L.W.’s
account of a bath by father’s girlfriend, then mother repeatedly escalated the issue by
asserting DCFS was not handling the matter as one dealing with a sexual predator, by
insisting on filing a police report which required a police interview of L.W., and by
further exaggerating or falsifying the claims to include “digital penetration” of multiple
20
orifices. At one point when L.W. was visiting father before she was detained, mother
appeared to be preparing for further reports to DCFS of alleged misconduct. L.W. told
the social worker mother asked a lot of questions, and tried to make her “say things.”
Before the conclusion of the jurisdiction hearing, the court entered a stay away order to
keep mother from calling L.W.’s school, after she called at least 15 times to set up a
meeting with the principal, causing the school to briefly disenroll L.W. At the
jurisdiction hearing, mother insisted she had acted appropriately with respect to the bath
incident. Mother admitted only that she had acted inappropriately at the Mother’s Day
tea at L.W.’s preschool.
On this evidence, the juvenile court could reasonably conclude removal was
necessary to protect L.W. Allowing L.W. to remain in mother’s custody would have
permitted mother to continue saying negative things about father, some of which had
already significantly troubled L.W., and would have afforded her the opportunity to
continue disrupting L.W.’s relationship and visitation with father by her questions and
efforts to find misconduct where none existed.
In addition, the court did not abuse its discretion in awarding father sole custody
and allowing mother only monitored visitation. Mother had already engaged in
obstructive conduct by calling L.W.’s new school, describing the custody dispute with
father, and conducting herself in such a fashion that school staff felt she was a threat.
Mother’s conduct also suggested an inability to work cooperatively with father
concerning L.W., which weighed against shared custody. Moreover, the court could
reasonably conclude monitored visitation was necessary to prevent mother from making
further detrimental statements to L.W., or from attempting to question L.W. in an effort
to find additional bases for alleging father or those associated with him had engaged in
misconduct.
Mother’s arguments on appeal regarding removal, the custody award, and
monitored visitation, all center on her claim that the jurisdiction order was unsupported
by the evidence, and there was no evidence she had done anything to put L.W. at risk of
21
harm. (§ 361, subd. (c)(1); In re T.V. (2013) 217 Cal. App. 4th 126, 135 [jurisdictional
findings are prima facie evidence the child cannot safely remain in the home].) In light
of our conclusions above, we must reject these arguments.
III. The Juvenile Court’s Rulings Excluding Ripa’s Testimony Were Not
Reversible Error
Mother further asserts the juvenile court erred in excluding portions of Ripa’s
testimony. Mother contends: 1) the trial court erred in excluding evidence of Ripa’s text
message to mother because the message was neither a confidential communication nor
hearsay; 2) the trial court erred in sustaining privilege objections to Ripa’s testimony
because L.W.’s counsel waived the privilege by failing to assert it early enough; 3) the
privilege was not absolute and the trial court erred in not finding the necessity of the
information outweighed the privilege; and 4) the “incomplete and patchwork nature” of
the juvenile court’s rulings made its actions arbitrary and capricious, and prejudiced
mother because it prevented a “full picture of the nature and extent of [L.W.’s]
psychological problems.” Mother claims these errors cumulatively denied her a fair
hearing and violated her right to due process.
We need not decide whether the trial court’s evidentiary rulings were incorrect
because we conclude that even if the court erred, any error was harmless under either a
Watson or Chapman standard.9 (Cal. Const., art. VI, § 13; In re Jordan R. (2012) 205
Cal. App. 4th 111, 134-135; In re Dolly D. (1995) 41 Cal. App. 4th 440, 446 [parent’s
inability to cross-examine social worker infringed on due process right to confront and
cross-examine witnesses, was not harmless beyond a reasonable doubt]; In re Ronald R.
(1995) 37 Cal. App. 4th 1186, 1195 [violation of parent’s statutory right to counsel
reviewed under Watson standard].) Mother’s theory below and on appeal, was that
Ripa’s testimony, if allowed, would reveal that Ripa called the DCFS hotline to report
L.W.’s statements of abuse by father’s girlfriend, and that mother both spoke about the
9 People v. Watson (1956) 46 Cal. 2d 818, 836; Chapman v. California (1967) 386
U.S. 18, 24.
22
abuse with DCFS and reported it to the police at Ripa’s suggestion. Mother has not
established, however, that even if this were the substance of Ripa’s testimony, it would
have affected the ultimate outcome in this case.
The dependency petition alleged mother caused L.W. to provide false and
misleading information of sexual abuse. Even if Ripa testified that L.W. disclosed sexual
abuse and Ripa herself reported it to DCFS, then suggested that mother also contact
police, this would not change the court’s finding that L.W.’s initial report was coerced or
coached by mother. It was undisputed that mother took L.W. to Ripa, and mother told
L.W. to disclose the bath incident to Ripa. In addition, even if mother took L.W. to
police at Ripa’s suggestion, there was no indication that Ripa had any involvement in
mother’s subsequent conduct—repeatedly insisting police officers take a report after they
declined, or the change in allegations from bath time touching to vaginal and rectal
penetration which caused police to take a report and interview L.W.
Mother did not claim she was unaware of the alleged sexual abuse until L.W.
reported it to Ripa. In light of the juvenile court’s conclusion that mother, at the outset,
caused L.W. to either falsify or exaggerate the bath touching, there is no basis for us to
conclude the court’s decision would have been in any way affected by testimony
indicating mother was not the source of the referral to DCFS, or that Ripa suggested
mother contact police.
Further, while the juvenile court sustained several objections to questions
regarding the substance of L.W.’s therapy, Ripa was allowed to offer her observations or
opinion of mother’s conduct with L.W. Ripa testified she never saw any conduct by
mother she thought was inappropriate. She said she never witnessed mother
psychologically or emotionally abuse L.W., and had not come to the conclusion that
mother psychologically or emotionally abused L.W. She opined that L.W.’s relationship
with mother was, overall, positive. She did not attribute L.W.’s anxiety to mother’s
conduct or mention any severe harm to L.W.; instead she testified she thought mother’s
anxiety over the custody dispute affected L.W. “a little bit,” and she thought L.W.’s
anxiety was the result of “anxiety [L.W.] feels as a result of the relationship between her
23
mother and father.” Though mother contends the trial court’s evidentiary rulings
improperly prevented her from presenting a complete picture of the extent of L.W.’s
psychological problems, if any, what the court admitted on this subject was favorable to
mother. Indeed, the juvenile court allowed Ripa’s opinion on whether mother had
emotionally abused L.W. Mother posed no other questions to Ripa regarding other
psychological problems L.W. might have.
In view of the allegations in this case, the testimony mother sought to offer from
Ripa was ultimately peripheral to the central issue. Even if the juvenile court’s rulings
were in error, we conclude they were harmless.
DISPOSITION
The juvenile court orders are affirmed.
BIGELOW, P.J.
We concur:
FLIER, J.
GRIMES, J.
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