Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 00FL04197
RAYE, J.Respondent Steven Andrews (Father), the father of two children, is a twice-convicted child molester and a registered sex offender. In 1984 he pled guilty in Arizona to one count of attempted molestation, for which he was placed on probation. Fourteen years later, following seven years of marriage to appellant Alaina Berry (Mother), as his son was approaching four years of age and Mother was pregnant with their daughter, he was arrested again for child molestation. He pled no contest in Sutter County to felony annoying or molesting a child under the age of 18 years, and again he was placed on probation. Less than a year passed before his marriage and relationship with his two children were altered forever when he violated probation and subsequently was sentenced to three years in prison. In the ensuing marital dissolution proceeding, Mother was granted sole physical and legal custody; Father was authorized supervised visitation, initially by an interim court order and later under a 2002 marital settlement agreement between the parties.
Father did not seek to exercise his visitation rights until his release from prison and the end of a three-year period of isolation from his children ordered by his parole officer, who apparently imposed the condition in the absence of any evidence that Father had ever acted inappropriately around his children. Since then Father has exercised his visitation rights but has never sought a change in physical custody of the children, who remain with Mother. He has sought only unsupervised visitation, which, in light of his status as a registered sex offender, requires the court to find there is no significant risk to the children. (Fam. Code, § 3030, subd. (a).)
All further statutory references are to the Family Code unless otherwise indicated.
Two findings by the trial court under section 3030, one in 2005 and the other in 2007, are at issue in this appeal. In 2005 the court determined that Father posed a significant risk to his children. Nonetheless, the court expressed the view that it was not in the children’s best interest to maintain the status quo for the long term, stated its order continuing the supervision requirement in effect was temporary, and directed a one-year program of therapy aimed at the reunification of Father with his children. In 2007, following the completion of the therapy program and after receiving the views of four experts who recommended unsupervised visitation, including a mediator who in the earlier hearing had opposed it, the same trial judge determined that Father did not pose a significant risk of committing sexual offenses against his children.
Mother argues (1) the trial court erred in modifying its earlier finding of significant risk given the absence of substantial evidence of changed circumstances and the absence of evidence supporting the court’s finding that Father did not pose a significant risk; and (2) the trial court abused its discretion in requiring the son to serve as the de facto supervisor of Father’s visits with the daughter. We conclude the changed circumstance rule, generally applicable to requests for change of child custody, does not apply to a finding under section 3030 that a parent poses a significant risk. We further conclude that, in any event, Father presented substantial evidence of changed circumstances, and the record contains ample evidence that he does not pose a significant risk to his children. Finally, we find no abuse of discretion in the order directing that Father’s visitation with the younger female child always take place with the older, male sibling; we reject Mother’s argument that this constitutes the older child as a visitation supervisor.
Factual and Procedural Background
Father and Mother were married on April 26, 1991. They have two children: a son born in 1994 and a daughter born in 1998.
1. Father’s criminal history
In early 1984 Father pled guilty in Arizona to a misdemeanor for exposing himself to a store clerk. He was placed on probation for one year. On October 22, 1984, Father pled guilty to one count of attempted molestation of a child under the age of 15 years, a felony under Arizona law. According to the police report, Father invited a six-year-old girl into his home, exposed himself, and had the girl touch his penis. Father then tried to put his hands on the girl’s buttocks, but she told him to stop. The Arizona court suspended sentence, placed Father on probation for five years, and ordered him to serve three months in jail. It also ordered Father to participate in counseling dealing with sexual problems.
On September 23, 1998, some 14 years after the Arizona felony conviction and seven years into his marriage with Mother, Father pled no contest in Sutter County Superior Court to a felony count of annoying or molesting a child under the age of 18 years with a prior (Pen. Code, § 647.6, subd. (c)(1)), the Arizona felony conviction constituting the prior. Father’s parole officer reported that Father sat in his truck parked in front of a convenience store staring at a 13-year-old girl while she used a telephone. Father left the girl a $20 bill and a note stating, “You're cute!!! Do you want a Sugar Daddy?” Father’s son was approaching four years of age at this time, and Mother was pregnant with their daughter. The trial court suspended sentence, placed Father on probation for five years, and ordered him to serve 90 days in the county jail. The court also ordered Father to register pursuant to Penal Code section 290 and to participate in sex offender counseling.
On June 25, 1999, Father violated probation by again violating Penal Code section 647.6. According to his parole agent, Father drove up and down Fulton Avenue in Sacramento County, honking and waving at a young child who was walking to school. The child became frightened and walked back to her father’s place of business. When the girl attempted again to walk to school, Father returned, and he waved and honked to get her attention. At this point, the child went back to her father’s place of business and they called police. The police encountered Father as he left a massage parlor.
On November 15, 1999, the Sutter County Superior Court, pursuant to a petition to find Father in violation of his probation, revoked Father’s probation and sentenced him to the upper term of three years in state prison on the 1998 offense. At that time, Father’s son was almost five years old, and the daughter was approaching her first birthday.
2. Dissolution proceedings
Mother petitioned for dissolution in Sacramento County Superior Court on June 30, 2000, while Father was incarcerated. She requested sole legal and physical custody, and that Father be allowed supervised visitation. Following a hearing at which only Mother appeared, the court on March 30, 2001, granted Mother sole physical and legal custody, and authorized supervised visitation for Father of up to four hours per week, alternating Saturday and Sunday. The court’s order was based on recommendations made by the parties’ private mediator, Penny Hancock. The court also stated that Father could petition the court for further mediation once he was released from prison. On January 11, 2002, the court entered judgment approving a marital settlement agreement. The parties agreed to custody and visitation terms that were identical to the terms ordered by the court on March 30, 2001, except that any supervised visitation by Father had to be consistent with the terms and conditions of his parole. The parties acknowledged that custody and visitation rights were subject to court order and the paragraph of the agreement pertaining to custody or any later custody or visitation order would be subject to modification.
3. First request for unsupervised visitation
Some two and a half years later, when the son was 10 years old and the daughter was six, Father filed an order to show cause seeking modification of custody and visitation rights. In his papers, dated September 10, 2004, Father requested joint custody and unsupervised visitation. In his supporting declaration, Father declared he had been released from prison on April 15, 2001. His parole officer informed him the next day that he could not have any contact with his children for three years. Thus, Father did not begin exercising his visitation rights until three years had passed.
Carol H. Atkinson, Ph.D., Father’s clinical and forensic psychologist, wrote in a declaration dated October 15, 2004, that Father had completed 13 months of intensive therapy with her, consisting of group therapy three times per week and individual therapy one time per month. She considered Father “to be of no more, and most likely less, risk to his children than any other father.” She recommended unsupervised visitation and eventually joint custody.
Following a hearing, the parties stipulated to adopt mediator Hancock’s latest recommendations, and the trial court so ordered on March 17, 2005. Under those recommendations, the court continued sole legal and physical custody with Mother and continued supervised visitation. Father would have supervised visitation on alternating weekends, both Saturday and Sunday, for up to five hours on Saturday and four hours on Sunday. The court authorized as an interim order Father’s new wife, Rita, to serve as the supervisor, but it set this issue for a long cause hearing.
The court (the Hon. Jerilyn L. Borack) convened the long cause hearing over three days in July and August, 2005. At the hearing and in its statement of decision, the court noted the scope of the hearing included Father’s original request for unsupervised visitation. If unsupervised visitation was not granted, Father sought continued authorization for Rita to supervise the visits.
Dr. Atkinson testified at the hearing. In her opinion, Father was no longer a risk of molestation to his children. During therapy, Father admitted to what he had done except regarding the Arizona felony. He adamantly denied having the girl touch his penis. Dr. Atkinson stated Father’s therapy had been successful, and all of the testing she performed on him at the end of treatment returned with normal results. Dr. Atkinson believed that since Father was no longer a risk, he could move forward with reunification therapy in order to reunite with his children.
However, Father’s parole officer, Kathy Williams, stated Father had not been successful in any type of therapy prior to the time she referred him to Dr. Atkinson. Father had not progressed in large part because he did not admit to committing any of his crimes.
Mediator Hancock also testified. She recommended that visitation continue to be supervised. However, she anticipated the children would move into unsupervised visitation once an evaluator opined there was no significant risk of molestation by Father and a reunification process to reunite Father with his children had been successfully completed.
The trial court denied Father’s requests for unsupervised visitation. Except to note the conflicting testimony between Father’s parole officer and his therapist regarding their assessments of potential risk to the children, the court made no other comment on the issue at the hearing. The court adopted the mediator’s recommendation that visitation remain supervised but, departing from the mediator’s recommendation, determined that Rita could not serve as the supervisor because supervision required impartiality, a quality lacking in a wife. Her judgment would be impaired by their personal relationship and thereby put the children at risk.
As the hearing concluded, the court noted the importance of considering the children’s needs and opined that the status quo would not be in the children’s long-term best interest. She proposed a “one-year plan” involving a one-year coordinated therapy program during which Father, Mother, their spouses, and the children would continue to undergo therapy. The therapy would include reunification between Father and his children.
In its statement of decision, the court made a specific finding under section 3030, subdivision (a) that there remained “a significant risk to the children if they were to be in [Father’s] care without supervision.” As a result, section 3030, subdivision (a) required the court to deny Father’s requests for joint custody and unsupervised visitation.
Section 3030, subdivision (a) provides, in relevant part: “No person shall be granted physical or legal custody of, or unsupervised visitation with, a child if the person is required to be registered as a sex offender under Section 290 of the Penal Code where the victim was a minor, or if the person has been convicted under Section 273a, 273d, or 647.6 of the Penal Code, unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record.” (§ 3030, subd. (a)(1).)
The court declared that its orders for custody and visitation were temporary orders.
The court issued its formal findings and order on December 21, 2005. The court ordered sole custody to remain with Mother and ordered Father to have agency-supervised visitation. It also required Father and the children to participate in reunification counseling, and Father and Mother to participate in co-parenting counseling, for a one-year period. The court stated that after the family completed one year of counseling, either party could move for further orders.
4. Second request for unsupervised visitation
Slightly less than one year later, on November 7, 2006, Father moved to modify the court’s visitation order. By this time, the son was almost 12 years old and the daughter almost eight. Father asserted he had been in reunification counseling with his children for over a year and that his counselor, Dr. Larry Nicholas, believed he should have additional time with his children in a less restrictive setting. He also stated the agency-supervised visitation had created a financial strain on him, leaving him unable to exercise all of his visitation rights because he could not afford the supervision costs. He asked for eight hours of unsupervised visitation on alternating weekends.
Following a hearing on March 21, 2007, the trial court denied Father’s request for unsupervised visitation. However, the parties stipulated to meet with Dr. Nicholas for reunification and family therapy for six more months. At the end of that time, Dr. Nicholas would write a report on his opinion relative to supervised visitation. The court did not make findings regarding risk to the children.
5. Third (and present) request for unsupervised visitation
As the six-month period neared an end, Father, by motion dated July 9, 2007, requested an end to supervised visitation. In support, Father asserted mediator Hancock and Dr. Nicholas, who both previously opposed unsupervised visitation, now recommended an end to supervised visitation and did so in reliance on risk assessments conducted by Dr. Atkinson and another psychologist, Christopher Heard, determining that Father was not a risk to his children.
Although the trial court’s order stated Father was also requesting an order for joint legal custody, Father’s moving papers requested only a change in visitation. Also, at the beginning of the hearing, the court stated the motion was for a modification of visitation.
Father provided a copy of Dr. Nicholas’s report to the court. In the report, Dr. Nicholas offered no opinion on whether Father posed a risk to his children should visitation be unsupervised. He saw “no benefit to continuing supervised visitation, as both children are ready to spend more extended time with [F]ather and stepmother.” He also wrote, however, that the “question of whether the children will be safe with [F]ather in his company without supervision, and whether such visitation poses any appreciable risk to them, is a separate one which I have not investigated or evaluated. However I have been provided copies of the reports by Dr. Atkinson and Dr. Heard concerning [F]ather. Both reports conclude that [F]ather poses low or minimal risk around the children. Ultimately I accede to the court’s opinion as to whether [F]ather should have unsupervised visitation with one or both children.”
The report prepared by Dr. Atkinson that Dr. Nicholas mentioned was the letter Dr. Atkinson prepared in 2004, already discussed above, in which she opined Father did not pose a risk of molestation to his children.
Dr. Heard concluded in February 2007 that Father “poses a low level of risk of reoffense.” He interviewed Father in January and February 2007, administered the Minnesota Multiphasic Personality Inventory (MMPI-2) to him, and reviewed various files to reach this conclusion. His conclusion was based on Father’s history of treatment with Dr. Atkinson, satisfaction in his marriage to Rita and his working construction for himself, the length of time since he violated his terms of probation in 1999 (approximately eight years), and on the fact that he was approaching the age of 50, where “one finds very low levels of reoffense by those previously convicted of sex offenses.”
Mediator Hancock recommended Father have unsupervised visitation. Based upon her review of an evaluation by Dr. Atkinson’s dated March 17, 2003, an interview with Dr. Heard on February 13, 2007, and interviews with the parties, she recommended in a new report dated March 1, 2007, that Father have unsupervised visitation on the first, third, and fifth Saturday of each month for nine hours each day. Both children reported to Hancock that they enjoyed seeing their father. The son thought the supervisors “get in the way” and did not want the visits to be supervised.
At the evidentiary hearing on the matter, Dr. Heard, Dr. Nicholas, and mediator Hancock testified on Father’s behalf. The issue for Dr. Heard was whether Father posed a risk of sexual offense. In his opinion, Father posed a “very low level of risk.” Dr. Heard performed his risk analysis by comparing Father’s demographic factors, personality traits, and offense history with known recidivism rates and characteristics of those who recidivate. He stated the level of risk of sex offenders reoffending over time is relatively low, anywhere from 10 to 15 percent, and the factors unique to Father further reduced that risk. Among them were that Father was now almost 50 years old, and the rate of sexual reoffense, the sexual function of males, and the severity of problematic personality dynamics all decline as a function of age beginning at age 25.
Also, Father had lived in the community without reoffending since his release in 2001. He had developed a sustained, intimate relationship with his new wife, and he felt better about himself as a result of running his own business. Father had also undergone extensive treatment, which further reduced his risk of reoffending.
On cross-examination, Dr. Heard stated he did not use any actuarial tests, such as the Static-99, with Father because they are still in the experimental stage. He also stated that he was instructed to see what Father’s risk level was, not whether Father’s risk level had changed since 2005. Dr. Heard was also not aware at the time he examined Father that Father’s business was not doing well and he was unable to pay his bills. Nor was Dr. Heard aware that Father and his wife were living separately.
The Static-99 is an actuarial assessment that attempts to predict the likelihood an individual will reoffend, based upon various risk factors such as age, history, behavior, and lifestyle. (See People v. Allen (2008) 44 Cal.4th 843, 852.)
When asked by the court whether he would be comfortable saying there is no significant risk, Dr. Heard stated he “can't see significant risk to [Father’s] children.”
Dr. Nicholas testified that the children’s relationship with Father had improved over time. Both had been somewhat fearful of Father at the beginning of therapy, but by the end, both were more comfortable. The daughter quickly dropped her fears of being around Father, and she engaged with him and his wife in the supervised visits in a “fairly normal way for a girl her age.” The son was initially extremely cautious with Father, but over time, he became more comfortable. He began to allow Father to participate in some of his recreational activities, and eventually expressed a desire to have unsupervised visitation with Father.
Dr. Nicholas recommended that if the court granted unsupervised visitation, both children have separate times with Father. In his opinion, the children would not be at risk of any degree of emotional harm if the court granted unsupervised visitation. Dr. Nicholas was not qualified, however, to offer an opinion on the risk of physical harm to the children.
Mediator Hancock testified as an expert witness. She acknowledged that her current recommendation for unsupervised visitation was a change from her 2005 report. Her new opinion was based on the facts that both children had been through therapy and had developed safety plans, both were two years older, the reunification process between Father and son was successful, Father had followed all of the rules set up by his supervisors, and Drs. Heard and Atkinson had concluded that Father was low risk.
Arguing against the motion, Mother’s attorney claimed the court had to apply the changed circumstance rule, and that Father had failed to show changed circumstances. The court, however, stated the 2005 order was a temporary order because it did not state the order was a final order. It reasoned that the holding of Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro) required it to inform the parties clearly that its order was a final order, and the 2005 order had not done that.
Recalling its prior order, the court noted that it had required the parties to participate in family counseling for a year, the purpose of which was to assist Father and the children in establishing a relationship, and Father and Mother in establishing a working coparenting relationship. The court further noted that it “would look for a showing that the required counseling had taken place, thereby substantially reducing the risk to the children and increasing the ability of the parties to trust each other.” Further, Father would have the burden of showing he did not pose a significant risk of harm to his children as required by section 3030, subdivision (a), and that modifying the court’s 2005 order would be in the children’s best interest. The court determined Father had satisfied this burden, and it awarded him unsupervised visitation on two Saturdays each month.
Applying the preponderance of evidence standard, the court determined Father did not pose a significant risk of committing sexual offenses against his children. It also determined it was in the children’s best interest to have “structured, limited, but unsupervised parenting time with their father.” However, the court required that the son always be present whenever Father was having visitation with the daughter. The son could have visitation without the daughter’s being present, but the reverse would not be allowed. The court stated its order was a final custody order, and any future modification would require a showing of a substantial change of circumstances.
Mother appeals from the trial court’s determination. She claims (1) the trial court erred by not applying the changed circumstance rule to its determination under section 3030, subdivision (a) that Father did not pose a significant risk, and no substantial evidence exists of a changed circumstance in Father’s risk level; (2) no substantial evidence supports the court’s de novo conclusion that Father does not pose a significant risk; and (3) the court abused its discretion when it made the son a “de facto supervisor” of Father’s visits with the daughter. We disagree and shall affirm the judgment.
Mother also petitioned for a writ of supersedeas against the trial court’s order. We denied the petition. (In re Marriage of Andrews (May 12, 2008, C058722) [petn. den. by order].)
DISCUSSION
As Mother appropriately acknowledges, “[i]t is well established that in divorce proceedings the court has the power to vary and modify its decree as to the custody of the minor children from time to time, as circumstances change. The court, in revising and modifying its decree, proceeds upon new facts considered in connection with the facts formerly established, the change of circumstances, the conduct of the parties and the best interests of the child.” (Crater v. Crater (1902) 135 Cal. 633, 634.) Families are not static organisms. Circumstances often change. The mother who was a paragon of probity when awarded custody may become neglectful and abusive. The peripatetic father may put down roots and offer a nurturing home. (See Burchard v. Garay (1986) 42 Cal.3d 531, 538 (Burchard).) Children grow and develop, and their maturation alters the family dynamic. Our Supreme Court early observed that “a decree of a court in this state awarding the custody of a minor child of divorced parents to either party in a divorce proceeding has no permanent finality and... is later subject to change and modification by the same court.” (Foster v. Foster (1937) 8 Cal.2d 719, 726 (Foster).)
True, a change of circumstances must be shown before a custody order can be modified; “it is not possible for the dissatisfied party to keep the courts continually occupied with suits seeking to change the former order of the court with reference to the custody of the child.” (Foster, supra, 8 Cal.2d at p. 726.) But the requirement to show a change of circumstances is not so “‘absolutely iron-clad’” that it trumps the welfare of the child, which is always the paramount concern of the courts. (Goto v. Goto (1959) 52 Cal.2d 118, 123.)
Where section 3030 is not implicated, cases hold that the change of circumstances rule does not apply to visitation change requests. “Unlike a change in custody, an alteration in a parenting or visitation schedule does not cause a disruption in ‘“established patterns of care and emotional bonds with the primary caretaker”’ [citation] justifying the added burden of demonstrating changed circumstances.” (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1079 (Lucio); see also Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1379-1380; In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513.) Here, Father does not seek additional time with his children. He seeks merely an adjustment in the terms of visitation. The only change that will result from the court’s order is that Father will be able to visit his children alone, without the intrusion or expense of a third party supervisor.
It is also clear that, absent the legal issues raised by section 3030, the changed circumstance rule would not otherwise apply to Father’s request to modify an order deemed by the trial court to be temporary. The changed circumstance rule does not apply to interim orders that were not intended to be a final judicial determination, such as a pendente lite stipulation or a pretrial order or order to show cause. (In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1487.) Nor does the rule apply to “de facto” custody situations that exist outside the imprimatur of a prior court order. (Burchard, supra, 42 Cal.3d at pp. 534, 537-538.) Applying the changed circumstance rule to temporary orders or unsanctioned arrangements would be “unsound, unworkable, and potentially harmful. It is unsound because, absent some prior determination of the child’s best interests as of some past date, the courts have no warrant to disregard facts bearing upon that issue merely because such facts do not constitute changed circumstances. It is unworkable because... absent such a prior determination the courts have no established basis on which they can assess the significance of any change. And it is potentially harmful because it could compel the court to make an award inconsistent with the child’s best interest.” (Id. at pp. 537-538, fns. omitted.)
We note, however, the court’s holding in Montenegro, supra, 26 Cal.4th at page 258 that “a stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule only if there is a clear, affirmative indication the parties intended such a result.”
Here, the order of supervised visitation was initially uncontested by Father, who was in prison, and later assented to by the parties in a marital settlement agreement. Father did not exercise his visitation for three years following his release from prison, in accordance with the orders of his parole officer. Father then sought an end to the supervision requirement. The parties stipulated to adopt the mediator’s recommendation for supervised visitation and the court issued an interim order permitting Father’s wife to serve as supervisor pending the conduct of a long cause hearing. At the long cause hearing, the trial court went out of its way in its statement of decision to declare that the orders were temporary orders. The court appreciated the changing family dynamic and anticipated a future change in the order because it was not in the children’s best interest to maintain the status quo for the long term.
Notwithstanding the trial court’s declaration that the 2005 order was temporary and that the changed circumstance rule would not apply to the court’s determinations, including the finding of risk under section 3030, Mother insists the trial court has no control over the duration of its findings; once a court declines to find “there is no significant risk to the child,” the same judge cannot thereafter find the parent poses no significant risk—unless it also makes a finding, supported by substantial evidence, that the circumstances have changed since the earlier determination.
Mother asserts support for such a finding is missing in the present record. According to Mother, Dr. Heard’s “assessment of Father’s risk was based on what Dr. Heard determined had changed between the time Father committed his sex offenses and the time of Dr. Heard’s analysis, not between the time of Dr. Heard’s analysis and the court’s previous determination of significant risk.” The only other testimony on the risk posed by Father came from Hancock, the private mediator who, in Mother’s estimation, was not qualified to express an opinion on the issue. We are thus faced with the question of whether the changed circumstance rule applies to a court’s finding of risk, made in conjunction with an order of supervised visitation intended by the court to be temporary. In light of the policies underlying the changed circumstance rule, and the nature of the finding required by section 3030, we answer that question in the negative. In any event, we are also satisfied that a change of circumstances is established by the record.
The changed circumstance rule is based on principles of res judicata. (Burchard, supra, 42 Cal.3d at p. 535.) As such, the rule gives conclusive effect to final orders. It seeks to promote judicial economy, preserve the integrity of the judicial system, and protect litigants from harassment. (Lucido v. Superior Court (1990) 51 Cal.3d 335.) The changed circumstance rule has similar aspirations. However, the fit between res judicata and family law proceedings, particularly child custody proceedings, is not a comfortable one. Unlike litigation generally, involving facts that are fixed in time, child custody litigation involves children, parents, and their circumstances, all of which change over time.
The doctrine of res judicata has two components—“res judicata,” or claim preclusion, and “collateral estoppel,” or issue preclusion. Under res judicata, strictly defined, “[a] valid final judgment on the merits... serves as a complete bar to further litigation on the same cause of action.” (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) Thus, res judicata applies to causes of action, a technical concept involving “primary right” theory, and not to individual findings. Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. (Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 604.)
There is always a sense of urgency when children are involved because children do not remain children forever. Where older children are involved, the time horizon in which a court can provide meaningful relief is limited.
Consequently, the policy justifications for res judicata are rarely invoked in family law custody cases, where concern about repetitious litigation is subordinated to concern about the best interests of the child. (Cf. Foster, supra, 8 Cal.2d 719, 726-727.) Rather, the changed circumstance rule is viewed as an “adjunct” to the best-interest test. (Burchard, supra, 42 Cal.3d at p. 535.) It promotes judicial economy, but more importantly, it promotes continuity and stability. “In most cases, of course, the changed-circumstance rule and the best-interest test produce the same result. When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.” (Burchard, supra, 42 Cal.3d at p. 538, fn. omitted.) Thus, the best interests of the child factor into the decision to entertain a request to alter parenting arrangements and in the resolution of that request.
This is not to suggest that a custodial parent can be dragged into court and forced to repeatedly litigate the issue of custody at the whim of the other parent who invokes the child’s best interest. But it does mean that the rules are applied differently when children are involved. Orders pertaining to minor children are unlike orders concerning marital property and other commonly litigated family law matters. The existence and character of a piece of property can be determined to a reasonable certainty and once determined should not be redetermined. Even the question of spousal income, while often difficult to pin down precisely, cannot be revisited absent persuasive evidence of a material change.
However, it makes little sense to apply res judicata principles strictly and hypertechnically to foreclose reconsideration of facts that are inherently uncertain and in a state of flux. People are not like property and money. Determining whether a parent convicted of touching a nonrelated child poses a significant risk to his own children is difficult. When additional, time-sensitive variables are added—the parent’s age, the efficacy of treatments and counseling designed to cure or suppress pathological sexual urges, the age and maturity of the children, the parenting skills and personal qualities of the parents—the complexity and difficulty of the task is magnified. The need to rely on experts further complicates the analysis.
Judges are inclined, for good reason, to tread carefully. Often, the “changed circumstance” that prompts reconsideration of an earlier finding is a change in the judge’s assessment of expert opinions or a simple change in the judge’s own comfort level. Given the enormous difficulty of assessing risk, the relatively brief period of time that a child remains a child and the enormous gravity of the decision on parents and children alike, we should not impose unnecessary restraints on judicial decision making in this area.
If the court had determined Father posed no risk to his children and granted unsupervised visitation, but compelling evidence later came to light suggesting that he did pose a risk, we would not rely on the changed circumstance rule to foreclose consideration of a motion to require supervision. There is no reason to impose a different standard when the court initially finds a parent poses a risk.
Here, the evidence provided to the trial court on the issue of risk was sparse. It boiled down to the testimony of two witnesses. Father’s parole officer, who was neither a mental health professional nor an expert on child molestation, considered him a risk because he did not admit to committing any of his crimes and had failed at all therapy prior to his referral to Dr. Atkinson. Dr. Atkinson, Father’s therapist, concluded he was no longer a risk because therapy had been successful as confirmed by tests that she administered. This conclusion was reached notwithstanding Father’s continued denial of the Arizona felony.
The record reveals the trial court carefully considered the evidence and devised a well-thought-out plan of family therapy designed to reduce the risk and permit unsupervised visitation in the future.
We give great deference to trial courts in making judgments and crafting orders in the very difficult cases involving child custody. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) Their carefully crafted plans should not be undone by a rigid adherence to hypertechnical rules of procedure that do not advance the best interests of the affected children.
The dissent suggests the “decision of the child’s best interest operates independently of the court’s role under section 3030, subdivision (a).” Not so. Rather, a court’s finding under section 3030, subdivision (a) must be read in light of section 3011, which provides that in assessing best interest, a court must consider “[t]he health, safety, and welfare of the child.” (§ 3011, subd. (a).) In its enactment of section 3030, subdivision (a) the Legislature has decreed, in effect, that unsupervised visitation with a registered sex offender who poses a significant risk of harm to the child is inimical to a child’s best interest. As noted elsewhere, this restriction is unremarkable; it would be a clear abuse of discretion to permit such a parent unsupervised contact with a child. However, the requirement of both a risk assessment and explicit findings whenever unsupervised visitation of a sex offender parent is contemplated implements the requirement of section 3011 that the health, safety, and welfare of the child be considered as part of the best interest calculus.
The language of section 3030 is also at odds with Mother’s position. Only if a court orders unsupervised visitation do the terms of section 3030 come into play. Such an order cannot be made “unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record.” (§ 3030, subd. (a)(1).) The purpose of the requirement is clear: to ensure that before a court grants unsupervised visitation to a registered child molester it carefully considers the risks involved and discloses its thought process on the record. That purpose disappears if the court leaves a supervision requirement in place. Here the trial court was not required to make a finding of risk in order to continue the extant supervision requirement. It would be incongruous to conclude section 3030 gives conclusive effect to a finding that is not even required by the statute.
Our dissenting colleague indicates that section 3030, subdivision (a) curtails the trial court’s discretion to permit unsupervised visitation by a registered sex offender. We could not imagine that any court would permit unsupervised visitation by a registered sex offender who poses a significant risk of harm to a child. Thus, the thrust of section 3030 is not to restrict a court from making an order it would never make, but to require careful consideration of risk when making visitation orders respecting registered sex offenders. That purpose is not served by an application of the change of circumstances rule.
Finally, even if proof of a change of circumstance is required, substantial evidence of such appears in the record. Initially, we note the changing landscape on which this case developed. After the court declined to remove the supervision requirement at the 2005 hearing, and as noted by the trial court in 2007, Father, the children, and Mother engaged in a program of counseling, the children grew older, and Father continued to visit his children under the observation of a trained visitation supervisor. The children became accustomed to being around Father. The visitation supervisor developed a safety plan for the children. Reunification was successful.
Thereafter, Dr. Heard conducted an extensive evaluation of Father and concluded that he does not pose a significant risk to the children. The mediator, Hancock, who formerly recommended against unsupervised visitation, now concurs that unsupervised visitation is appropriate. Mother argues that we should reject Dr. Heard’s assessment in light of his own acknowledgment that his risk assessment did not focus on the narrow question of whether circumstances had changed since the 2005 order. We should reject the mediator’s views as she was not qualified to opine on Father’s risk. And we should reject counseling as a changed circumstance because the counseling has “nothing to do with whether a convicted child molester and registered sex offender... poses, or continues to pose, a substantial risk.” Mother’s misgivings about the strength of the showing of changed circumstances are not enough.
It is a well-established rule of appellate procedure that “‘[t]he power of a reviewing court begins and ends with a determination of whether there is in the record substantial evidence, contradicted or uncontradicted, which supports the result reached; and we must also assume in favor of the determination below the existence of every fact which the trier of facts could have reasonably deduced from the evidence.’ [Citation.]” (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1521.) Certainly, a more compelling case for changed circumstances would have been made if, for example, Dr. Heard’s testimony that Father poses no current risk had been preceded in 2005 by Dr. Heard’s testimony that he posed a significant risk, or if the counseling ordered by the trial court had been directed at problems posed by child molester parents. But our charge is not to gauge the strength of Father’s case but to determine whether there is substantial evidence to support a finding of changed circumstances. Our review is a deferential one.
Here, every single professional who testified at the 2007 hearing recommended unsupervised visitation.
Under Mother’s argument, not even an army of psychiatrists and psychologists testifying in unison that a parent does not pose a significant risk could overcome an earlier finding of risk, absent testimony identifying some specific circumstance relevant to risk that has changed. As Mother views this case, evidence of counseling, Father’s evolving relationship with his children, and the maturation of the children are not enough. Such backward-looking insight is not required. The trial court could consider expert testimony on Father’s current level of risk, together with other evidence regarding the court-ordered counseling, his behavior, and the children’s capacity to discern threats, and conclude that circumstances had changed. In addition to these factors, we also consider it significant that the same trial judge who determined that Father posed a risk is the judge who presided over the modification proceedings. “In determining whether circumstances have changed... the court necessarily considers the facts established in the former proceeding as a basis for comparison. [Citations.] In the present case, the trial judge had presided at the former trial and was therefore familiar with the circumstances then existing.” (Gantner v. Gantner (1952) 39 Cal.2d 272, 276-277.) We cannot disregard her observations about the effects of counseling and her conclusion that Father no longer poses a significant risk to his children.
We conclude, therefore, that even if Father were required to establish changed circumstances, the record amply supports a finding to that effect.
Substantial evidence
Mother’s attack on the substantiality of the evidence supporting the trial court’s finding that Father does not pose a significant threat to his children closely mirrors her attack on evidence of changed circumstances. Additionally, Mother seeks to discredit Dr. Heard’s testimony as unreliable because it was based on false information reported to him by Father and because Dr. Heard chose not to rely on any kind of actuarial risk assessment instrument. Our previous observations regarding an appellate court’s role in reviewing evidentiary claims apply with equal force to Mother’s substantial evidence claim here. We agree the trial court’s finding is not unassailable. However, it is not plausible to conclude that the finding, supported as it is by the uncontradicted testimony of two experts, the report of a third, and the concurrence of a family mediator, lacks evidentiary support, and we decline to do so. To the contrary, the finding is amply supported by the record.
We appreciate Mother’s concern for the safety of her children. Father’s history provides an objective basis for the concern, and there may be a multitude of subjective factors, arising from their personal interactions, that fuel her concern. Mother was described in testimony as “an excellent mother,” and in some respects her parenting skills and great vigilance provide another basis for finding there is less risk to the children.
The terms of the visitation order
While granting Father’s request that visitation be unsupervised, the trial court required his visitation with the younger, female child to always take place at the same time as his visitation with the older, male child. Mother complains that this makes the son a “de facto supervisor” of Father’s visits with the daughter. We disagree. Nowhere in the order is there language imposing obligations on or empowering the son to supervise Father’s visitation. Rather, the order appears to be an effort by the trial court to assuage Mother’s own discomfort with unsupervised visitation, a discomfort that could easily affect the relationship between Father and the children if not adequately addressed. There was testimony suggesting that Mother’s distrust of Father and her hostility to visitation had placed the children in a conflicted position. The order would also address any lingering discomfort on the part of the younger child, who reportedly was less comfortable during visits than the older boy, who found the presence of a supervisor unnecessary and thought the supervisor “[got] in the way.”
“The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (Burgess, supra, 13 Cal.4th at p. 32.) Measured by this standard, the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
I concur: HULL, J.
Nicholson, Acting P.J., Dissenting
I respectfully dissent.
The majority fears that applying the changed circumstance rule and its res judicata effects to a reconsideration of a section 3030, subdivision (a) finding interferes with the flexibility required for a trial court to determine a child’s best interest. The concern is unwarranted because section 3030, subdivision (a) operates independently of a trial court’s ultimate determination of the child’s best interest. Indeed, the trial court does not reach that decision on a motion by a registered sex offender for custody or unsupervised visitation until after first determining under section 3030, subdivision (a) that there is no significant risk to the child if it grants the motion.
In truth, it is the Legislature that curtailed the trial court’s discretion by adopting section 3030, subdivision (a). And the Legislature had a rational basis for doing so -- keeping children safe from child-molesting parents. Applying the changed circumstance rule to a section 3030, subdivision (a) finding merely furthers the Legislature’s purpose for adopting the statute.
Moreover, a section 3030, subdivision (a) finding of risk to the child is exactly the type of ruling where the res judicata principles promoted by the changed circumstance rule should operate. A section 3030, subdivision (a) finding is made after an evidentiary hearing. Applying the changed circumstance rule to the finding prevents unsubstantiated relitigation over the finding, and it serves the child’s best interest by protecting him from risk until the risk is eliminated.
For these reasons, I conclude the changed circumstance rule should apply to reconsideration of a section 3030, subdivision (a) finding, and, in particular, to the trial court’s finding in this case.
1. Applying changed circumstance rule to section 3030, subdivision (a)
There is no disagreement that a trial court must be accorded wide latitude in determining whether unsupervised visitation is in the best interest of a child. However, the Legislature severely limited a court’s discretion in circumstances where a registered sex offender seeks custody or unsupervised visitation. By adopting section 3030, subdivision (a), the Legislature in effect determined as a matter of state policy that it is not in the child’s best interest to be under the custody of, or have unsupervised visitation with, a registered sex offender. Hence the statute reads: “No [registered sex offender] shall be granted physical or legal custody of, or unsupervised visitation with, a child....” (§ 3030, subd. (a).)
The only exception to this rule is where the court “finds that there is no significant risk to the child....” (§ 3030, subd. (a).) Determining this issue does not call for determining the child’s best interest in its traditionally broad sense. Rather, it calls for determining whether the sex offender is a risk to the child if he has custody of, or unsupervised visitation with, the child.
If the court determines the sex offender is a risk to the child, the court’s analysis ends and it denies the offender custody or unsupervised visitation without ever having to determine what, in the traditional sense, is in the child’s best interest. The Legislature has made that decision for it.
If the court determines the offender poses no significant risk to the child, then the court must continue its review to determine whether granting custody or unsupervised visitation to the offender, notwithstanding the lack of risk, is in the child’s best interest. It is this latter decision with which the majority is concerned.
However, as just demonstrated, that decision of the child’s best interest operates independently of the court’s role under section 3030, subdivision (a). As a result, applying the changed circumstance rule to a section 3030, subdivision (a) determination does not result in unreasonably applying res judicata principles to the trial court’s ultimate determination of the child’s best interest except as mandated by the Legislature in section 3030, subdivision (a). The court still has wide discretion to determine a child’s best interest once it satisfies itself that the registered sex offender is not a risk to the child.
The majority argues application of the changed circumstance rule does not serve the purposes of section 3030, subdivision (a), as the statute allegedly does not come into play until the court orders unsupervised visitation, and its purpose “is not to restrict a court from making an order it would never make.” The Legislature, however, directed otherwise.
The bill that became section 3030, subdivision (a) arose from a kidnapping that occurred in 1987. At that time, any history of a parent’s abuse against a child was just one of all other relevant factors a court was to consider in determining the best interest of a child in a family law proceeding involving that parent. (Former Civ. Code, § 4608; Stats. 1984, ch. 1679, § 3, p. 6068.) However, in 1987, a father abducted his seven-year-old daughter in Pleasanton during an unsupervised visit. The father had been granted unsupervised visitation even though his criminal history included convictions for kidnapping and child sexual abuse. (Sen. Rules Com., Off. Of Sen. Floor Analyses, analysis of Sen. Bill No. 1803 (1987-1988 Reg. Sess.) as amended June 14, 1988 (Aug. 11, 1988) p. 2.)
To prevent such harm from happening again, the Legislature adopted the bill that eventually became section 3030, subdivision (a) “to prohibit child abusers from having unsupervised access to their children.” (Sen. Rules Com., Off. Of Sen. Floor Analyses, analysis of Sen. Bill No. 1803 (1987-1988 Reg. Sess.) as amended June 14, 1988 (Aug. 11, 1988) p. 2.) It was “introduced to prohibit parents with convictions for serious child abuse from being awarded custody or unsupervised visitation.” (Ibid.)
Thus, contrary to the majority’s assertion, section 3030, subdivision (a) comes into play the moment a registered sex offender moves to obtain custody or unsupervised visitation, not just when the court grants custody or unsupervised visitation to the offender parent. Its purpose is to prevent sex offenders from obtaining unsupervised visitation except in exceptional circumstances, not just to require courts to consider risk when making visitation orders involving sex offenders, as the majority claims. That procedure was what the Legislature precluded when it adopted section 3030, subdivision (a).
From this clear legislative intent, it becomes obvious that the changed circumstance rule furthers section 3030, subdivision (a)’s purpose. The rule ensures that the Legislature’s determination of a child’s best interest is not disturbed once a court has determined a registered sex offender remains a risk to the child unless and until the offender shows a change of circumstances such that he is no longer a risk. The rule keeps the child safe.
The changed circumstance rule also accords the benefits of res judicata to a ruling that is in all respects a final ruling. The ruling is made following an evidentiary hearing where the previously convicted sex offender parent has the opportunity to overcome the statute’s presumption of harm before the court issues an order on his request for unsupervised visitation. (§§ 3170, 3185; see In re Marriage of Dunn (2002) 103 Cal.App.4th 345, 348.) Once a court conducts a de novo hearing on the parent’s request and determines the parent has not overcome the presumption of section 3030, subdivision (a), that determination is as final a judicial determination as any made in family law and is entitled to the res judicata benefits of a changed circumstance rule applicable to any subsequent attempts to modify the court’s order.
Applying a changed circumstance rule to a section 3030, subdivision (a) finding reduces subsequent litigation on the same issue, thereby reducing the parties’ expenses and the court’s burdens. Similar to its affect on custody determinations, the rule accords a measure of stability on the child’s relationship with his or her parents, particularly where the child’s emotional bonds to the offending parent may be conflicted and confused. And most importantly, it furthers the state’s intent, clearly expressed by the unambiguous language of section 3030, subdivision (a), to protect a child against unsupervised contact with a parent convicted of child molestation.
The majority relies on non-section 3030, subdivision (a) cases from other districts of the Court of Appeal that concluded the changed circumstance rule does not apply to modifications solely of visitation rights. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077 (Fourth Dist., Div. Three) (Lucio); see also Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1379-1380 (Fourth Dist., Div. One); In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513 (First Dist., Div. Five).) According to these courts, “[u]nlike a change in custody, an alteration in a parenting or visitation schedule does not cause a disruption in ‘“established patterns of care and emotional bonds with the primary caretaker”’ [citation] justifying the added burden of demonstrating changed circumstances.” (Lucio, supra, 161 Cal.App.4th at p. 1079.)
Assuming, for purposes of argument only, these holdings are correct, they nonetheless do not apply to a section 3030, subdivision (a) finding made in the course of a request for unsupervised visitation. None of these cases concerned the application of section 3030, subdivision (a) to a registered sex offender parent seeking unsupervised visitation. Their reasoning for not extending the changed circumstance rule to a modification of visitation loses whatever weight it may have when the request to modify must be determined pursuant to section 3030, subdivision (a). Where a court after a hearing has denied a request for unsupervised visitation pursuant to section 3030, subdivision (a), any change to that order will be a significant disruption in the unique pattern of care to which the child has become accustomed. Indeed, modifying a prior order to allow unsupervised visitation with a convicted child molester parent would be an extreme disruption to an established pattern of care statutorily mandated by the Legislature.
The requesting parent in Lucio was a registered sex offender, but the court could not determine from the record whether his crime involved a minor. Thus the Lucio court did not address the application of the changed circumstance rule to a section 3030, subdivision (a) finding. (Lucio, supra, 161 Cal.App.4th at pp. 1073, 1083.)
This departure from the pattern of care, the finality of a section 3030, subdivision (a) ruling, and the Legislature’s intent not to have registered sex offenders be given unsupervised visitation and to restrict a court’s discretion in awarding such, all justify applying the changed circumstance rule when reconsidering a prior determination under section 3030, subdivision (a) that a registered sex offender is a risk to the child if granted unsupervised visitation.
2. Applying changed circumstance rule to this case
Having determined the changed circumstance rule applies to a modification request under section 3030, subdivision (a), I next conclude the rule applied here, as the trial court’s 2005 order finding Father to be a risk was a final order subject to the rule. Furthermore, the trial court’s error in not applying the changed circumstance rule in 2007 when Father again sought unsupervised visitation was prejudicial, as Father failed to demonstrate circumstances had changed since 2005 such that he was no longer a risk should he be granted unsupervised visitation.
a. 2005 order was not a temporary order
The majority concludes the 2005 order was not a final order simply because the trial court said it was not. A section 3030, subdivision (a) finding, however, is different from a usual custody determination and cannot be carved up by a trial court into a series of temporary orders leading up to a final order. The court’s 2005 section 3030, subdivision (a) finding was in fact a final order.
The structure of section 3030, subdivision (a) requires the court to issue a final order, whether it may wish to or not. When a trial court considers a request for unsupervised visitation that is subject to section 3030, subdivision (a), there is no temporary order for a trial court to issue. As discussed above, the Legislature has already determined the offender is a risk to the child and has mandated the terms of such an order, and the court has no discretion to interfere with or modify those terms except upon the offender overcoming the presumption of harm.
Moreover, once a court denies unsupervised visitation under section 3030, subdivision (a), the court’s order becomes a determination, based on a weighing of evidence, of the level of risk posed by the offender to his children. There is nothing about that determination to call temporary or to continue. Additionally, the order is one upon which the court can assess the significance of any subsequent change in circumstances should a modification be requested later.
In this matter, the trial court convened a long-cause evidentiary hearing in 2005 to determine whether Father was no longer a risk to his children should he be granted unsupervised visitation. After hearing the testimony and reviewing the evidence, the trial court determined Father was still a risk. Having been determined based on a contested hearing, the trial court’s finding under section 3030, subdivision (a) was a final judicial determination on that issue, and was therefore entitled to the protective cloak of the changed circumstance rule.
The trial court relied on Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro) as a basis to call the 2005 order under section 3030, subdivision (a) temporary and thus not subject to the changed circumstance rule. That reliance was misplaced. In Montenegro, the Supreme Court determined a custody order resulting from a stipulation by the parties could be treated as a final judicial determination for purposes of applying the changed circumstance rule to a subsequent modification request so long as the parties clearly stated their intent that the original stipulation be treated as a final order. (Montenegro, supra, 26 Cal.4th at pp. 257-258.)
Montenegro did not concern a determination under section 3030, subdivision (a), with its statutory presumption of harm, and thus offers no guidance here. Contrary to the trial court’s assumption, Montenegro did not concern whether the trial court clearly stated its intent that its orders be final. The issue in that case was whether the parties stated their intent in their stipulation. In fact, the high court in Montenegro assumed a judicial determination of a child’s best interest derived from an adversarial factfinding process was a final order for purposes of the changed circumstance rule. (Montenegro, supra, 26 Cal.4th at pp. 256-257.)
Section 3030, subdivision (a) mandates such an adversarial judicial inquiry on the issue of risk once it is raised because the Legislature has already presumed the child is at risk. After the de novo inquiry by the court has occurred, the trial court must determine, taking into account the statutory presumption of harm, whether the offender remains a risk to his children. Having made that determination, the trial court cannot simply label its decision temporary so as to allow the losing party a second de novo trial on the same issue in the future. Doing so would result in increased litigation, judge-shopping, therapist-shopping -- all of the undesirable results the principles of res judicata were designed to prevent.
For these reasons, I conclude the trial court’s 2005 determination under section 3030, subdivision (a) was a final judicial determination, and the court erred when it refused to apply a changed circumstance rule to Father’s 2007 request for unsupervised visitation. Having found in 2005 under section 3030, subdivision (a) that unsupervised visitation with Father presented a risk of physical harm to the children, the trial court in 2007 had to find a change of circumstances since its 2005 order such that Father no longer posed a risk of harm before it could grant Father unsupervised visitation.
b. No evidence in 2007 of changed circumstances
The trial court’s error in failing to apply the changed circumstance rule in 2007 was prejudicial. No reasonable court, based on this record, would have determined circumstances had sufficiently changed since the trial court’s 2005 order such that Father was no longer a risk to his children.
It is worth remembering that at the 2005 hearing, Father’s parole officer, Kathy Williams, testified that Father had not been successful in any type of therapy prior to the time she referred him to Dr. Carol H. Atkinson. This in large part was because Father did not admit to committing any of his crimes. Williams’s testimony was never discredited.
Mediator Penny Hancock had also testified in 2005 against granting unsupervised visitation. She anticipated the children eventually moving into unsupervised visitation, but only upon an evaluator concluding there was no significant risk of Father molesting them.
At the 2007 hearing, no evidence of changed circumstances concerning Father’s risk to the children was presented to the trial court. Neither Dr. Larry Nicholas nor mediator Hancock was qualified to testify as to Father’s risk to the children or any change in circumstances since 2005 that would reduce Father’s risk to the children. In fact, Dr. Nicholas specifically stated he did not investigate whether unsupervised visitation posed any risk to the children.
Mediator Hancock opined in favor of unsupervised visitation, but her conclusion was based in part on her belief that the children had developed safety plans if they needed to get away from Father. This point actually cuts against the court’s finding. If Father was no longer a risk, the children would not need to have safety plans at the ready.
Hancock also based her opinion on Dr. Atkinson’s and Dr. Christopher N. Heard’s analysis of risk. However, neither of those reports supported a conclusion that Father’s risk level had changed since 2005.
Dr. Atkinson’s report did not demonstrate a change in circumstances regarding Father’s risk to the children because it was prepared in 2004, before the trial court determined in 2005 that Father was a risk to his children. The report obviously contains nothing about changes since 2005. Moreover, the trial court had already rejected Dr. Atkinson’s conclusion in 2005 when it found Father was a risk to his children.
Dr. Heard’s report also did not show Father’s risk level had changed since 2005. Indeed, Dr. Heard testified on cross-examination that he was not instructed to determine if there had been a change in Father’s risk level since 2005.
The evidence Dr. Heard relied upon to conclude Father posed no risk does not support a finding that Father’s risk level has changed since 2005. Dr. Heard relied on Father’s MMPI-2 test results, but that test did not analyze whether Father’s risk level had changed. He relied on Father’s allegedly stable marriage and business, but, as the record unmistakably establishes, the marriage and business were less stable in 2007 than they were in 2005. He relied on Father’s history of counseling, but all of Father’s counseling with Dr. Atkinson had concluded before the court’s 2005 determination, and his counseling with Dr. Nicholas since 2005 had addressed reunification issues, not Father’s level of risk. Dr. Heard also did not perform any tests that actually assess risk on a scientific basis. He specifically refused to perform the Static-99, a test that is hardly experimental as it is now commonly used and relied upon by courts to determine a sex offender’s risk of reoffending.
Even Dr. Heard’s analysis of Father’s MMPI-2 results did not show a reduction in risk. He said Father’s performance on the test “indicated a defensive test set, where he again attempted to present himself in a somewhat unrealistic light [in part] due to his personality style, which can best be described as histrionic. Persons with this type of personality style have a strong desire to be approved of, and actively seek such, in part by presenting limited parts of themselves to both others and themselves.... [¶] They tend to have problems in the areas of emotional and sexual intimacy, although frequently present themselves in a highly seductive or suggestive manner.... [¶]... They can be manipulative and exploitative in their drive to achieve the emotional and social support they crave from others, without which there can be transient collapses into depressive and depressive/anxious states.”
Ultimately, Dr. Heard’s conclusion was based on vague statistical trends, not facts specific to Father. Because recidivism rates and sex drive decline with age, Dr. Heard opined without citation to authority, Father’s chance of risk must also have declined. Because Dr. Heard was not aware of any reported incidents of misconduct by Father, he concluded there had been no misconduct. These opinions are unsupported by fact upon which one could conclude Father was no longer a risk to his children.
Even the trial court, by its ruling, expressed doubt about Father. By ordering Father not to have visitation with his daughter without his son being present (a ruling the propriety of which is suspect), the court effectively determined that Father remained a risk at least to his daughter. And the trial court made this finding de novo.
Thus, even if a reasonable court had applied the correct standard of review, it would not have concluded on the evidence in the record that circumstances had changed since 2005 such that Father was no longer a physical risk to his children. Accordingly, I would reverse the judgment with instructions that the court deny Father’s request for unsupervised visitation.