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In re Cole C.

June 4, 2009

IN RE COLE C., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
MARK C., DEFENDANT AND APPELLANT.



APPEAL from orders of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Affirmed. (Super. Ct. No. EJ2969C).

The opinion of the court was delivered by: Huffman, Acting P. J.

CERTIFIED FOR PUBLICATION

Mark C. is the father of Cole C. and the stepfather of Chloe V. and Ella V., Cole's half siblings.*fn1 The San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of the three minors following allegations of physical and sexual abuse.

In this appeal, Mark challenges orders declaring Cole a dependent of the juvenile court under Welfare and Institutions Code*fn2 section 300, subdivision (j) and removing Cole from his custody under section 361, subdivision (c)(1).

Mark asserts: (1) the court erred by applying the psychotherapist-patient privilege concerning therapy sessions that Chloe and Ella participated in before the Agency filed petitions on their behalf; (2) the court denied his due process rights when the court made its findings concerning Chloe and Ella's petitions before he presented all of his evidence regarding Cole's petition; and (3) the court lacked sufficient evidence to support its jurisdictional and dispositional findings. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2008, the Agency investigated allegations claiming Mark physically, emotionally and sexually abused Chloe and Ella, then six and four years old. Based on these allegations, the Agency filed a petition on behalf of seven-month-old Cole under section 300, subdivision (j). The petition alleged Cole's half siblings, Chloe and Ella, had been subjected to physical harm and excessive discipline. Mark used cold showers, ice packs and hosed down the girls as a form of discipline. The petition also alleged Mark stated Cole would receive harsher discipline because he was a boy.

In the Agency's detention report, social worker Robyn Jensen reported her findings following her interview with the minors' former nanny, Angie H. Angie worked with the family for about three and a half months. During that time, she reported Mark used cold showers, ice packs and sprayed the girls with a hose as forms of discipline. Angie also reported concerns that Mark sexually abused the girls. Ella would masturbate "aggressively" during naps and when Angie asked Ella why she touched her private area, Ella responded "Mark touches." Chloe disclosed Mark touched her vaginal area over her clothes. Chloe described to Angie a game Mark played with her and Ella. Mark would have the girls lay in certain positions, including having the girls spread their legs and lay on top of each other. Chloe also disclosed that Mark would lay on top of her when she was in trouble.

Ella told Ms. Jensen that Mark would put an ice pack on her stomach and back if she was bad. Mark would also take Ella outside and spray her with cold water. During her investigations, Ms. Jensen learned Chloe suffered from a weak bladder and enuresis. Mark would punish Chloe for wetting her pants by having her wash her own underwear and by threatening to tell her friends at school.

Ms. Jensen interviewed the girls' biological father, Dean V. Dean reported Chloe told him that Mark had touched her vaginal area and that Mark would lock her in the garage and use ice packs for discipline. Dean confronted Heather, the girls' mother, about Chloe's statements. Heather minimized the disclosures made by Chloe and told Dean not to trust Chloe. Ms. Jensen confirmed with the children's maternal grandparents that Dean had called Heather to confront her about Chloe's disclosures.

Ms. Jensen interviewed Mark, and he admitted he used ice packs, cold showers and sprayed the girls with a hose as a means of obtaining obedience. He referred to these methods as "cycle interrupt." Mark placed the packs on the girls' chests when they misbehaved, and he admitted spraying the girls with a hose on two occasions. He acknowledged the girls did not like being sprayed. He also admitted he would turn the water on cold for about five seconds when the girls were taking a shower and misbehaving. He stated that Cole would "have a harsher punishment when he is older, due to being a male." Mark explained because the girls felt he favored Cole, he assured them Cole would face harsher punishment because Cole is a boy.

Heather admitted Mark used the ice packs but she did not feel this method was abusive to the girls and indicated the methods would stop if the Agency insisted. She did not see the harm in using these particular methods. Heather denied having any concerns about the girls being sexually abused. Ms. Jensen discussed with Heather Chloe's disclosures to Dean that she had been sexually abused by Mark. Heather dismissed the statements claiming it was Dean's way of attempting to gain custody of the girls.

Ms. Jensen requested that the girls participate in an Extended Forensic Exam (EFE) to address the sexual abuse allegations. Ms. Jensen explained that the EFE was the preferred method of refuting sexual abuse allegations. Heather became defensive and stated she knew her children were not being abused. She eventually agreed to have her daughters submit to the EFE.

In May 2008, social worker Jessica Newmyer spoke with Mark concerning the allegations against him. He explained that he was not behaving in a sexual manner with the girls and that when the girls were on top of him, he was wrestling with them. He denied touching the girls in a sexual manner.

Shortly after his interview with Ms. Newmyer, Ms. Jensen received a report from the girls' school principal indicating Mark came to the school and appeared angry. He told school staff that he was being accused of putting his fingers in Chloe's vagina. Mark then stated, "I can't stay 200 feet from a school; my backyard is too close and its pedophile heaven. Anybody can grab a kid."

Following the investigation, the Agency determined the minors were at risk of harm based on the sexual abuse disclosures and the discipline methods used by Mark. The court held a detention hearing and found a prima facie showing had been made. The court detained the girls in out-of-home care. Cole remained in the care of Heather on the condition Mark not live with them and that Heather was not to supervise Mark's visits with the minors.

In a jurisdiction report, the Agency provided additional confirmation and details surrounding the alleged physical harm suffered by the girls. Social worker Lindsey Clark met with the girls and they confirmed when they misbehaved, Mark sprayed them with a hose, placed ice packs on their backs and stomachs and locked them in the garage. Chloe explained when Mark sprayed her and Ella with a water hose, they were not wearing swimsuits and were naked. Ms. Clark asked the girls about the cold showers. They explained Mark would turn the water to cold in the shower when they were in trouble.

Ella revealed Mark would punish her by putting her outside and locking the door. Ella explained it would be dark outside and that sometimes she was alone and other times Chloe was with her. Both girls stated Mark sometimes locked them in the dark in the garage.

Contested Jurisdiction and Disposition Hearing Concerning Chloe and Ella The court held a contested jurisdiction and disposition hearing and heard testimony from several witnesses, including Dean and Angie.

Dean testified he lived in Northern California. He separated from Heather more than two years before and claimed he had an amicable relationship with Heather. In June 2007, the girls had a two-week visit with Dean. After a bath one evening, Dean testified he was drying Chloe with a towel and while he was drying her off she told him, "Mark touches me there," in reference to her vaginal area. Ella confirmed Chloe's statement by nodding her head. Dean attempted to clarify if Chloe meant using a towel to dry her off just as he had been doing, but Chloe said Mark had touched her. Dean telephoned Heather to discuss Chloe's statements, and Heather said to him that small children make things up. Heather told Dean not to call social services or the police.

Dean also described seeing the girls masturbate and that the girls continued to act out sexually with more frequency as time went on. Dean claimed the girls did not engage in sexual behaviors before Mark came into their lives.

Concerning the allegations of physical abuse, in October 2007, Dean met the girls at Disneyland. Dean overheard Mark telling the girls to behave because, "otherwise when you get home, something very bad will happen." During the visit, the girls repeatedly asked Dean if they were behaving well. He asked the girls why they repeated themselves, they told him if they misbehaved Mark would lock them in the garage and turn off the lights.

Angie testified that she worked five days a week taking care of the girls and after less than one week on the job, she noticed Mark acting aggressively toward the girls. As Angie brushed Chloe's hair, Mark would push Angie aside, grab Chloe's hair and pull it. Mark would pull Chloe's hair on a daily basis. On another occasion, Angie was bathing the girls and Mark came in the bathroom and grabbed Chloe's hair. He took Chloe outside, naked and dripping wet. Angie saw Mark hose Chloe down with a garden hose. Angie witnessed two more garden hose incidents, and she would hear the girls scream and cry when the water hit them.

On another occasion, Ella had been crying after she woke up from a nap. Mark took an ice pack from the freezer, went to Ella's room and Angie heard Ella screaming. The next day Ella told Angie that Mark made her step on the ice pack and then he lifted up her shirt and pressed the ice pack on her stomach and back.

Angie further testified she would pick up Chloe from school, and Chloe would be very anxious and nervous about going home. She would ask Angie if Mark was going to be at home. Chloe also would wet her pants at school about two times a week. Angie witnessed Mark on three or four occasions directing Chloe to wash the clothes she had soiled in the driveway. Angie testified Chloe's anxiousness decreased when Mark was away from the home for lengthy periods of time. Mark went out of town for about one month and during this time, ...


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