Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD229434, JD229435
CANTIL-SAKAUYE, J.
Appellant G.K., the mother of the children, M.K. and S.K., appeals the juvenile court’s findings and orders entered at a combined jurisdiction and disposition hearing. (Welf. & Inst. Code, §§ 395, 355, 358.) Appellant contends: 1) her therapist’s report was admitted in breach of her therapist-patient privilege; 2) the petition failed to state facts sufficient to support jurisdiction; 3) there was insufficient evidence to support the jurisdictional findings; and 4) the juvenile court improperly delegated control over visitation to the father. We shall affirm.
During the pendency of this appeal, appellant legally changed her name.
Hereafter, undesignated statutory references are the Welfare and Institutions Code.
BACKGROUND
In March 2009, S.K. (born September 1997) and M.K. (born September 2002) were taken into protective custody after the University of California, Davis Police Department determined appellant was delusional and unable to meet their needs.
M.K. was diagnosed with autism, mental retardation, and severe behavioral problems. Appellant went to the Children’s Protective Services (CPS) office and alleged M.K. was being sexually abused at his school.
Appellant said she could tell her son was being molested by teachers at his school because he “is acting differently.” She reported M.K. was also molested by his “black bus driver” because he picks up M.K. “too early for school.” Appellant had read books about sexual abuse, which led her to conclude that M.K.’s larger genitals were another sign he was being molested. According to appellant, the teachers had “secret signals, ” and appellant knows they are “all behind this and doing horrible things to my child.”
CPS officials expressed doubt, but offered to schedule an exam for M.K. Appellant became increasingly upset and cried uncontrollably. She said: “I’m going to kill Black and Asian people because they are going to hurt my son. I need to be protective.” Appellant refused to believe M.K. was autistic, and withdrew him from all services. She claimed he needed to go to a “normal” school because there was nothing wrong with him, and he was being molested at the school.
The children’s father had left for India in February 2009, and returned about three weeks later. He left the children with a family friend, but while he was gone, appellant came over and demanded their return. After father came back from India, appellant threatened to harm him if he took the children back. Father was fearful of appellant, and she would threaten him if he picked up the children.
According to S.K., appellant sometimes “says things or cries about weird stuff, but nothing crazy.” At times, “my mom will cry and take a long nap, but it’s okay because I’m older now.”
S.K. continued: “Sometimes my mom says some really bad things about my dad, but I just don’t listen.” He would not give details on what appellant said, but told the social worker, “It’s peaceful with my dad and his new wife.”
In March 2009, the Sacramento County Department of Health and Human Services (DHHS) filed dependency petitions alleging jurisdiction under section 300, subdivision (b) because of appellant’s mental health problems, her threats, her history of taking the children out of school and alleging sexual abuse, and father’s failure to take custody of the children.
Father applied for a restraining order against appellant in April 2009. The application alleged that on several occasions during January and February 2009, appellant went to his residence and threatened physical violence. In March 2009, she went to the residence, kicked the front door, and threatened to kill the father and his wife. The juvenile court issued an ex-parte temporary restraining order in April 2009.
During three dependency-related interviews in March and April 2009, appellant’s thoughts appeared to be disorganized at times, and she seemed to have problems responding to some of the questions. Appellant told the interviewer that in July 2008, she became suspicious that M.K. was being molested at a gas station when she saw her son rubbing his private parts and screaming when he saw two African-American males, whom she described as “gangsters.” She went to the school to ask about sexual abuse, and observed school personnel were defensive.
Appellant determined M.K. was afraid to enter certain rooms and offices at the school. She was concerned the bus driver may have molested M.K. because the driver is Black, and M.K. does not like to ride on the bus. Appellant reiterated that M.K. belonged in a regular class, claiming the school wants him in special education so they can continue to molest him. She initially threatened to “go after” staff members who labeled M.K. as autistic, but later withdrew the threat.
She admitted being under a lot of stress due to her recent divorce from the father. At times, she felt depressed because she could not see the children very often. Following the death of the maternal grandmother, appellant did not communicate with the children except for practical or pragmatic purposes. She resumed normal communication with them in 2005.
The father said he divorced appellant in 2007 because she would fight him “without reason.” Appellant would scream epithets at him in the children’s presence, and accuse him of infidelity. M.K. was enrolled in a private school to get services for his autism. The father never had any concerns that his child was being molested at school, and said appellant fabricated these accusations in her mind.
M.K.’s severe developmental disability prevented him from being interviewed. During S.K.’s interview, M.K. would continually make clicking noises, inarticulate sounds, and seemingly random movements.
In an April 2009 interview, S.K. told the social worker appellant took good care of the children, and he did not know why they were removed. He said appellant would get angry at the father and when things spilled on the floor. Appellant would also get angry at M.K., telling him to “stop” or “never do that again.” S.K. said appellant removed M.K. from school because appellant saw a teacher hit M.K.
Staff at M.K.’s school reported that appellant entered the campus numerous times to threaten and accuse school personnel. Appellant said she did not want M.K. to attend school “with all [the] other stupid kids.” In November 2008, appellant was told not to return to the school without a school district representative. She later returned without a representative, and yelled accusations that M.K. was being molested by school staff. School staff told appellant to wait in the parking lot while they got M.K. She continued to yell after being asked if she wanted to remove M.K. from school.
M.K. was then retrieved by school staff. He started to pull on the arm of a staff member as he got closer to appellant. M.K. tried to hide behind the staff member when they were next to appellant.
CPS referred appellant to counseling to address M.K.’s disability and to develop an appropriate manner of communicating with others. The counselor sent a report to DHHS in June 2009, which gave a preliminary diagnosis of “Delusional Disorder, Persecutory Type.” Appellant believed M.K.’s disability was caused by the alleged molestation and the parent’s emotional unavailability during their breakup. She continued to think that placing M.K. in classes for more disabled children would prevent him from reaching his potential. She was also concerned that police were monitoring her comings and goings. The counselor concluded appellant’s prognosis was “not good.”
At the combined jurisdiction and disposition hearing, appellant argued there was insufficient evidence to support jurisdiction, as there was “no information in the jurisdictional dispositional report from a doctor suggesting that the mother has any mental health problems.” If the juvenile court did not dismiss the petition, appellant indicated she would submit on terminating the dependency and awarding joint custody to the parents, and objected to any order of supervised visitation for her.
The juvenile court sustained the petition, placed the children in the father’s custody, terminated the dependency, ordered supervised visitation for appellant as scheduled by the father, and granted the restraining order.
DISCUSSION
I
Appellant contends the juvenile court erred in admitting evidence from her therapist, in violation of the therapist-patient privilege. (Evid. Code, § 1014.) She is mistaken.
In June 2009, appellant’s therapist sent a report to DHHS which assessed appellant’s mental health, the reasons for her referral by CPS, and prognosis for treatment. The report was attached to an addendum report submitted by DHHS in June 2009.
Appellant did not object to the report, which forfeits her contention on appeal and abandons her claim of privilege. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; Evid. Code, § 912, subd. (a).) Anticipating our ruling, appellant argues the failure to object at trial was ineffective assistance of counsel. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.)
Evidence Code section 1014 prohibits the disclosure of confidential communications between the patient and therapist. However, “communications may be disclosed to ‘those to whom disclosure is reasonably necessary for... the accomplishment of the purpose for which the psychotherapist is consulted....’” (In re Cole C. (2009) 174 Cal.App.4th 900, 912, quoting Evid. Code, § 1012.)
Appellant relies heavily on In re Eduardo A. (1989) 209 Cal.App.3d 1038 (Eduardo A.) for her claim that the report was privileged. In Eduardo A., the Court of Appeal upheld the juvenile court’s decision to strike the psychiatric social worker’s testimony regarding statements made by the mother during treatment. (Id. at p. 1041.) The juvenile court had referred the mother for counseling to help her address the problems associated with her child having been molested. (Id. at p. 1042.) Evidence Code section 1017 was inapplicable, as it is limited to a court ordered “information-gathering examination.” (Eduardo A., supra, at p. 1042.) Therefore, the mother’s statements to the social worker were privileged. (Id. at pp. 1042, 1044.)
Appellant asserts the instant case is indistinguishable from Eduardo A., and counsel was ineffective for failing to invoke the patient-therapist privilege. Her argument overlooks another part of Eduardo A. which leads to a different conclusion.
“Without the testimony of psychologists, in many juvenile dependency and child custody cases superior courts and juvenile courts would have little or no evidence, and would be reduced to arbitrary decisions based upon the emotional response of the court.” (In re Jasmon O. (1994) 8 Cal.4th 398, 430.) The Eduardo A. court was mindful of this problem, but concluded that “[a]pplication of the psychotherapist-patient privilege to confidential communications made in court-ordered counseling does not prevent the court from acquiring the information needed for proper evaluation of these issues at a review hearing.” (Eduardo A., supra, 209 Cal.App.3d at p. 1043.) The Court of Appeal supported its conclusion by proposing several alternatives for the juvenile court to gain the necessary information on a parent’s mental health. (Id. at pp. 1043-1044.)
One alternative has particular relevance to appellant’s claim: “In the alternative, the court can, in its initial order referring a parent to counseling, further order the treating psychotherapist to prepare a report concerning the parent’s participation and progress for the court’s use at the review hearing. In this way, both therapist and patient will be fairly apprised at the outset of their relationship that communications relating to participation and progress made during treatment are subject to use by the therapist in preparing the ordered report, and there will be no expectation of confidentiality in the ensuing relationship as to those matters. [Citations.]” (Eduardo A., supra, 209 Cal.App.3d at p. 1044.)
This approach was adopted in In re Edward D. (1976) 61 Cal.App.3d 10 (Edward D.), where the juvenile court allowed the mother’s therapist to testify to his diagnosis of her mental condition. (Id. at pp. 12, 14.) Evidence Code section 1017 did not apply because the therapist was not appointed by the court. (Edward D., supra, at p. 15.) However, since Evidence Code section 1012 allows disclosure to “those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose, ” “a communication made for the accomplishment of that purpose neither breaches the confidence nor destroys the privilege.” (Edward D., supra, at p. 15.)
The mother in Edward D. “understood that she was to be examined by [the therapist] to provide a diagnosis or evaluation which would be considered in determining whether she would be given custody of the minors.” (Edward D., supra, 61 Cal.App.3d at p. 15.) The Court of Appeal concluded the mother’s “voluntary participation can only be interpreted as reflecting her consent that [the therapist’s] evaluation be communicated both to DPSS and to the court for that purpose.” (Ibid.) Accordingly, the therapist’s testimony did not violate the privilege. (Ibid.)
We agree. Where a parent’s mental health is at issue, it is essential for the department and the juvenile court to be informed of the parent’s condition and progress in therapy. So long as the parent is told the therapy will be used for both treatment and information gathering, then the therapist may relay the relevant information to the department and the juvenile court without violating the parent’s psychotherapist-patient privilege.
Here, mother could have no expectation of confidentiality in her relationship with the psychotherapist. Sacramento County Juvenile Court standing order No. 98-017 states in pertinent part: “After the Initial Hearing and at all times thereafter until termination of dependency, ... each parent shall provide the [DHHS] Social Worker with complete medical, dental, mental health, and educational information, and medical background, of the children, children’s mother and the children’s biological father, if known.” The standing order was part of the juvenile court’s order at the detention hearing.
Under the standing order, appellant had a duty to disclose her “complete” mental health information to DHHS, which would include the therapy which DHHS obtained for her. The standing order put appellant on notice that information from her therapy would be provided to DHHS, and would be used in the dependency. By deciding to participate in the therapy, appellant implicitly agreed to her therapist reporting the results to DHHS, who would in turn provide the report to the juvenile court.
Applying Eduardo A. and Edward D., we conclude the therapist’s report was not privileged, and trial counsel was not ineffective for failing to object.
II
Appellant claims the allegations of the petitions are inadequate to state a basis for juvenile court jurisdiction. She failed to challenge the petition in the trial court; however, the issue may be raised for the first time on appeal. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1132-1133; In re Alysha S. (1996) 51 Cal.App.4th 393, 397; cf. In re Shelley J. (1998) 68 Cal.App.4th 322, 328 [disagreeing with Alysha S.].)
An Alysha S. challenge, like a demurrer, is limited to the face of the petition. (See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 952, p. 367.) To satisfy the notice component of due process, the petition must contain a concise statement of facts which connect the statutory language to the case at issue. (§ 332, subd. (f); In re Jeremy C. (1980) 109 Cal.App.3d 384, 397; In re Stephen W. (1990) 221 Cal.App.3d 629, 640.) We construe well-pleaded facts in favor of the petition to determine if DHHS has stated a basis for dependency jurisdiction. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “This does not require the pleader to regurgitate the contents of the social worker’s report into a petition, it merely requires the pleading of essential facts establishing at least one ground of juvenile court jurisdiction.” (In re Alysha S., supra, 51 Cal.App.4th at pp. 399-400.)
The petitions in this case were based on section 300, subdivision (b). This requires proof that “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child, ... or by the willful or negligent failure of the parent... to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent... to provide regular care for the child due to the parent’s... mental illness, developmental disability, or substance abuse....” (§ 300, subd. (b).)
The petitions alleged the children came within section 300, subdivision (b), because: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness [] as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately [and/or] by the inability of the parent or legal guardian to provide regular care for the child due to the parent’s or legal guardian’s mental illness, developmental disability, or substance abuse.”
DHHS alleged the following, relevant supporting facts: “The children’s mother [G.K.] has mental health/psychiatric issues that impair her ability to provide adequate care and supervision of the children [M.K. and S.K.], in that on March 19, 2009[, ] the mother arrived at a Child Welfare Services office alleging her child, [M.K.], who is severely autistic, was molested by school staff. When social workers attempted to assist the mother, she became delusional, irate and irrational making threatening statements which include but are not limited to, ‘I am going to kill [B]lack and Asian people because they are going to hurt my son.’ Further, the mother has a history of taking the child out of school, on at least three prior occasions, claiming that he is being sexually abused. The mother’s untreated mental health/psychiatric issues place the children at substantial risk of physical harm, abuse and/or neglect.”
Appellant argues the pleading was defective because it failed to identify how her delusions created a substantial risk of harm to the children, and included no allegations regarding the severity of the physical harm they would suffer. We disagree. The allegations in the petition were sufficient to aver that appellant’s delusion caused her to act irrationally, and threaten to kill Black and Asian people. If true, this demonstrates a willingness to harm people in furtherance of her delusion. Threats of violence, particularly delusional ones, are dangerous; the children were unquestionably at risk of harm from a deluded mother who threatens to kill people.
The petition adequately alleges the children come within section 300, subdivision (b).
III
Appellant contends that there was insufficient evidence to support the court’s finding of jurisdiction.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible, and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Appellant argues there was insufficient evidence she was mentally ill because her therapist gave only a provisional diagnosis of delusional disorder. There was evidence, however, that appellant was under the delusion her son M.K. had been molested by his bus driver and school personnel. This delusion caused her to pull her severely autistic son out of school, and to threaten to kill Black and Asian people, whom she believed to be a threat to M.K. She thought M.K. was being molested because his genitals were large, and because he rubbed his genitals and screamed when he saw two African-American males at a gas station.
The therapist’s diagnosis, although provisional, was evidence of mental illness, as was appellant’s delusional and potentially violent behavior. Taken together, this is substantial evidence to support the juvenile court’s finding of appellant’s mental illness.
Appellant also takes issue with the finding that her mental illness placed the children at risk. She argues that a parent’s mental illness by itself cannot support a finding of a risk of physical harm to a minor. She claims DHHS never showed how her delusion of M.K.’s sexual abuse harmed the children, and there was no evidence the children were suffering any harm as a result of her delusions.
Appellant’s argument relies in part on In re Matthew S. (1996) 41 Cal.App.4th 1311 (Matthew S.). In that case, the mother had three delusions: “her son’s penis had been mutilated, he was being treated at UCLA while she was on a trip to South America, [and] she murdered the treating physician when she returned to find her son in a ‘septic state’ at the hospital.” (Id. at p. 1314.) In finding “[t]here is no evidence [the son] has suffered, or that there is substantial risk that he will suffer, serious physical harm or illness as a result of [his mother’s] supervision and protection of him, ” the court explained that “[a]side from going to the urologist to make sure her son was not harmed after she had a delusion, she is an excellent mother. [Her son] consistently expressed no fear of [his mother] for any reason. Neither did his siblings. She has a well-kept home, provides meals to her children and has consistently obtained medical treatment for the children. Her children are healthy, well groomed and attractive. She has voluntarily participated in extensive therapy for herself over the years, too. There is no evidence that she drinks or abuses substances. Doctor[s] saw no evidence of neglect.” (Id. at p. 1319.)
The present situation is distinguishable in several key respects. The minor M.K. is not a healthy teenager able to care for himself and tell authorities whether he fears appellant. He has severe autism and is mentally retarded. Accordingly, “the absence of adequate supervision and care poses an inherent risk to [his] physical health and safety.” (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [and cases cited therein].) Unlike the mother in Matthew S., appellant did not admit “she may be delusional” (Matthew S., supra, 41 Cal.App.4th at p. 1316), acknowledge she suffers from a mental disorder, or “voluntarily participate[] in extensive therapy for herself over the years” (id. at p. 1319).
Nor was there any evidence that appellant is “an excellent mother.” Appellant pulled M.K. out of school several times, and during one outburst at school, caused him to try to hide behind another adult. According to the father, before their divorce, appellant would fight him “without reason, ” and scream epithets at him in the children’s presence. Also, in his application for a restraining order, the father reported that appellant repeatedly went to his home and threatened him with physical harm in January and February 2009, and kicked the front door and threatened to kill the father and his new wife in March 2009. The juvenile court implicitly found the allegations true when it granted the restraining order.
It is true that “[h]arm to the child cannot be presumed from the mere fact of mental illness of the parent....” (In re Jamie M. (1982) 134 Cal.App.3d 530, 540.) However, appellant’s delusions were not idle. She took her severely autistic son out of school, wanted him placed with more “normal” children, and threatened to kill Black and Asian people.
Here, there was evidence of more than the mere fact of appellant’s mental illness. The persistence of appellant’s delusions, their potential for provoking a violent reaction, her history of acting on the delusions, and her violent behavior directed at the father provided the juvenile court with substantial evidence to support its jurisdictional findings.
IV
Over appellant’s objection, the juvenile court ordered supervised visitation for appellant, as directed by the father. Appellant contends the court improperly delegated control over visitation, a judicial function, to the father. Not so.
While the juvenile court has the power and responsibility to define visitation between a noncustodial parent and the minor children, the court need not specify all the details of that visitation. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373-1374 (Moriah T.).) It may delegate the management of the details of visitation, such as time, place, and manner. (Id. at p. 1374; In re Chantal S. (1996) 13 Cal.4th 196, 213-214 (Chantal S.).) “Only when a visitation order delegates... the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine.” (Moriah T., supra, at p. 1374.)
The cases in which appellant relies--In re Hunter S. (2006) 142 Cal.App.4th 1497, In re Julie M. (1999) 69 Cal.App.4th 41, and In re S.H. (2003) 111 Cal.App.4th 310--are distinguishable from the case here.
The visitation order at issue in In re Hunter S. granted the mother visitation “‘as can be arranged.’” (In re Hunter S., supra, 142 Cal.App.4th at pp. 1501, 1505.) Moreover, the minor there was given discretion to veto any visits with his mother, which he did for more than two years. (Ibid.) In Julie M., the juvenile court gave the children the discretion to determine whether they would visit their mother. (In re Julie M., supra, 69 Cal.App.4th at p. 46.) Reversing that order, the appellate court concluded the children could not be delegated such judicial power. (Id. at pp. 48-49.) In re S.H. reversed a juvenile court order giving the minors the right to refuse visitation, holding that “when the court orders visitation, it must also ensure that at least some visitation, at a minimum level determined by the court itself, will in fact occur.” (In re S.H., supra, 111 Cal.App.4th at p. 313.)
The juvenile court’s order delegated the details of visitation to the father, but did not delegate to the children whether appellant was to visit. The visitation order expressly stated appellant would have “supervised visitation with the minor children according to the schedule... to be determined by the father.” The father cannot refuse visitation. If appellant feels aggrieved by any conditions he imposes, she may file a section 388 petition to modify the visitation order. (Moriah T., supra, 23 Cal.App.4th at p. 1377.)
DISPOSITION
The judgments are affirmed.
We concur: SCOTLAND, Acting P. J. HULL, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.