(Super. Ct. No. 53-003100)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Mother, S. H., appeals from a judgment of the juvenile court sustaining a petition pursuant to Welfare and Institutions Code section 300, subdivision (c) declaring A. H. (minor) a dependent of the court.*fn1 She contends there is insufficient evidence to support the finding that minor suffers or is at risk of suffering "serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others" as a result of mother's conduct. (§ 300, subd. (c).) We agree and reverse.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
Over the course of a number of years, mother and father, J. H., were engaged in a highly contentious divorce and custody dispute, detailed in over five volumes of family law files. Beginning in 2004 and continuing through 2008 there were numerous unfounded and inconclusive referrals to Child Protective Services (CPS). Each parent made claims against the other, with these unfounded allegations including claims of emotional abuse, sexual abuse, and general neglect. There was also a substantiated claim of general neglect made against mother in 2004. Ultimately, mutual restraining orders were issued.
In October 2006, mother sought counseling for minor, but father would not agree. The counselor noted it "could be detrimental to [minor's] health to continue counseling if her father is against the idea. This could create an unhealthy concept of counseling and confuse [minor] about it being a safe place." Based on the clinical history and observation of minor, the counselor believed minor could benefit from counseling. The counselor also noted that it was clear mother and father had "significant difficulty communicating with each other and this invariably affects [minor.] It would be beneficial for her to have a safe neutral location where she can express her thoughts and feelings about her family dynamics as well as learn important coping skills. It is vital that these services be ordered by Court and agreed upon by both parents so that [minor] does not incur future losses during this tumultuous time." The counselor also believed each parent needed individual counseling.
In December 2007, Dr. Dugan conducted a child custody evaluation. Mother reported father was "very cunning and quite manipulative." Specifically, she claimed he tried to manipulate her to "act out and be reactive" and that he told minor to make statements that would make mother overreact by creating conflict or calling CPS. Mother also reported father was preventing minor from being involved in therapy. Mother reported minor appeared "to like and enjoy time with both parents" but had "periods of crying, difficulties with transition, and difficulties with being exposed to high parental conflict . . . ." Father reported concerns about mother's emotional and behavioral instability, and that this behavior frequently occurs in front of minor and causes her to withdraw emotionally and behaviorally. He reported that minor was "doing pretty well" and had no significant problems. He was concerned, however, about her "emotional adjustment patterns with respect to being caught in the middle of significant and chronic parental conflict." He claimed he was not opposed to minor being in counseling, but was opposed to mother "unilaterally and arbitrarily" selecting the therapist. Then, father wondered "given how well [minor] seems to be doing. . . whether or not she really needs any forms of child counseling."
Dr. Dugan also interviewed minor. There were no indications of cognitive, language or developmental delays. Minor presented as a "likeable, normally developing six-year old girl." There were no borderline or clinically significant spikes on any of her behavioral scores, supporting the parents' assertions that overall minor was developing well and not "exhibiting any developmental, emotional or behavioral problems." When the family was discussed, she appeared "shy, nervous and withdrawn." This affect was "notably different when compared to discussing her friends, school, activities or other areas of her life." The therapist concluded minor was "feeling fairly conflicted, confused, anxious and split with respect to her parents' separation and being exposed to ongoing parental conflict." Dr. Dugan was concerned about minor's emotional comfort and adjustment to the divorce, in part because of her "emotionally flat and withdrawn response upon discussing family issues . . . ." These concerns "more related to [minor's] divorce adjustment rather than any generalizable concerns."
Dr. Dugan interviewed minor's long-term daycare provider, Ms. Jackson, her kindergarten teacher, Becky Mills and a social worker, April Carew. Jackson and Mills both reported that minor's development was normal or above average. Jackson noted minor had very social relationships and was well-liked. She appeared happy to see each parent and did not demonstrate any hesitation with either of them. Mills reported minor was a well-behaved, respectful, "great" child. Carew found father more reasonable, cooperative and rational than mother, but noted her primary concern with the various referrals to CPS was the "emotional abuse of [minor] as a result of being exposed to chronic, intense parental conflict."
Dr. Dugan concluded minor's relationship with each of her parents was quite important to her. He expressed significant concern about minor "experiencing ongoing emotional abuse as a result of regular, intense and inappropriate exposure to parental conflict and 'boundary violations' with respect to unpredictable, emotionally reactive behavior. . . . [Minor] is experiencing ongoing emotionally upsetting and abusive behavior patterns, and needs to be protected from this dynamic as much as possible by the parenting plan." While he noted mother demonstrated consistent problems exposing minor to "unpredictable emotionally explosive behavior", he also noted it was clear both parents had engaged in verbally and emotionally abusive behavior and exposed minor to it. Dr. Dugan concluded the parents were engaged in a "pattern of high parental conflict." He generalized that children exposed to high parental conflict "are at risk of developing significant emotional and behavioral concerns. . . [including] depression, anxiety, behavioral withdrawal, reduced communication and emotional expression, lethargy, somatic symptoms and other like problems. . . [T]hese problems . . . are associated with emotional and behavioral withdrawal." Dr. Dugan concluded "both parents clearly have contributed to on-going co-parenting problems, and both parents clearly have contributed to the emotional adjustment difficulties of their child." Because of their ongoing difficulties, he concluded joint custody was not appropriate. Dr. Dugan's concerns about mother's emotional stability and father's more reasonable and stable presentation led him to recommend father be the primary physical custodian for minor.
In July 2008, father brought minor to counseling without mother's knowledge. Minor reported that mother made her say she did not love father and if she did not say she hated him, "Mom will beat the crap out of me." The counselor asked if mother beat her and minor answered, "No, but I'm afraid she will."
In July 2009, minor was seen by therapist Nina Nazimowitz. Nazimowitz reported minor was "an appropriate, playful, bright nervous 6, almost 7-year-old who is witnessing a large amount of conflict between her parents. [She] presented as nervous in therapy as she sought the approval of both parents . . . ." Nazimowitz concluded mother was invested in continuing the conflict between herself and father, her perceptions and interpretations were based on fear, and she was engaged in a power struggle that was taking precedence over her daughter. Nazimowitz concluded minor was "at this point, . . . coping well with her parent's ...