K.R. v. A.P. (In re Marriage of K.R.)

IN RE the MARRIAGE OF K.R. and A.P.

K.R., Respondent, v. A.P., Appellant.

A147489

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

April 14, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. VF07356209)

Appellant, A.P. (Father), appeals from a judgment granting his former wife, respondent, K.R. (Mother), sole legal and physical custody of their two daughters. Mother has not filed a respondent's brief.¹ We affirm.

I. BACKGROUND

Mother and Father married in 1999. They have two daughters, S. born in 2003 and K. born in 2005. The marriage was characterized by ongoing conflict, with each party alleging the other committed acts of domestic violence. Since June 2008, the parties have been embroiled in a hotlycontested custody dispute over their children who are now approximately 17 years old and 15 years old.

Allegations of Sexual Abuse

In November 2009, child protective services (CPS) received a call from an individual reporting that Father had been sexually abusing S. and K. Mother told the reporting party that the girls complained about Father pinching their private areas and taking baths with them. Based on these allegations, a CPS social worker met with Mother and the children on November 23. S. told the social worker that Father took baths with her and K. during visits at his house. Father would "always pinch their bottoms[,]" which hurt and made them cry. Father "did not pinch their vaginas, only their bottoms." Father also told S. and K. to "touch his privates but they didn't want to because 'it's disgusting.' "

During the interview, the social worker noted K. appeared to understand the questions, but at times she appeared to have difficulty providing clear answers. K. told the social worker she was afraid of Father because he would hit her and S. Father was "always mad" at Mother, and K. did not like this. When at his house, Father would get in the bathtub with K. and she did not like that, either.

Mother reported seeing small bruises from time to time on her daughters' bottoms, but because the girls never said Father caused them, she was not concerned. Mother, however, was concerned that K. kept coming home from visits with Father with severe rashes in her vaginal area. Mother took K. to the pediatrician, who determined K. had yeast and urinary tract infections. Mother felt no one believed her because Father was "very manipulative . . . and t[old] the police that she is mentally ill."

Ultimately, the social worker closed the November 2009 referral without further CPS action because, at that time, the children were not in any imminent danger. Father had not seen the children since July 2009, and Mother was about to leave on a month-long trip with the children.

On December 30, 2009, Mother called the CPS social worker, and told her that Father had obtained an ex parte order granting him visitation with the children that afternoon. The social worker immediately reopened the case and spoke with Father. Father agreed not see the children until at least the next scheduled family court hearing set for January 13, 2010. Father spoke with the social worker for more than 30 minutes, "sharing a lot of information about [Mother] and his concerns that she is mentally ill and putting things in the children's heads." Father "stressed that his daughters love him and that [Mother] is 'dangerous', 'evil-minded', 'manipulative,' 'criminally-minded' and 'sensational.'"

Police Investigation

In February 2010, law enforcement officials arranged for multidisciplinary interviews (MDI) with the children. S. was nearly 7 years old when she was interviewed. The assigned detective opined S. provided a "solid interview." The detective shared information about the interview with the social worker, and the information S. provided in the MDI was similar to what she had told the social worker. S. reported that Father "gets in the bathtub with her and her sister, that he has touched [S.'s] bottom and vagina, and that he has asked that [S.] touch his privates." The forensic interviewer found S. to be a reliable witness.

On February 9, 2010, the social worker issued a report finding the allegations of Father's sexual abuse of S. were substantiated. At the time,the MDI for four-year old K. had not yet occurred.² The social worker found the sexual abuse allegations regarding K. were inconclusive based on her November 2009 interview of K.

Court-Ordered Visitation and Appointment of Child Custody Evaluator

On February 19, 2010, the court ordered therapeutic or supervised visitation pending the resolution of the sexual abuse charges. It is unclear from the record if any visits ever occurred. The criminal charges against Father were dismissed on May 26, 2010.

On October 12, 2010, the court ordered reintroduction visitation to begin. The court appointed two reintroduction therapists to facilitate the visitation, but the reintroduction therapy did not begin and never occurred. The parties disputed the reasons why the reintroduction therapy with the appointed therapists did not occur.³

Appointment of Child Custody Evaluator

On November 16, 2010, the court appointed a child custody evaluator pursuant to Family Code, section 3111 and Evidence Code section 730. The court directed the evaluator to prepare a full custody evaluation. The court ordered Mother and Father to cooperate with the evaluator. The court further ordered Father to pay for the evaluation and related examinations.

Evaluator's Interim Report

On July 6, 2011, the evaluator submitted an interim report. The interim report was provided due to the pending reintroduction counselling between Father and the children, and Mother's and Father's lack of cooperation. The evaluator reported S.'s teacher called CPS in Fall 2009 because she suspected S. had been sexually abused. After summarizing the evidence—including the MDIs with both children, as well as his interviews with the social worker, and children's current and former treating therapists—the evaluator opined reintroduction counselling "would be harmful at th[at] time, if, as has been alleged, Father abused the children . . . ." S.'s statements in the MDI provided a "strong basis to suspect that Father sexually and physically abused her and sexually abused K[.] The reports of their current and former therapists are consistent with this conclusion." The evaluator recognized that his interim recommendations were "by definition" made "before all relevant information ha[d] been gathered[.]" They were made " 'without prejudice[,]'" and "final conclusions and recommendations . . . may be similar to, or depart fundamentally from" the interim recommendations.

The evaluator described the parties' lack of cooperation. From the beginning of the process, Mother was difficult to schedule for appointments, and she was now refusing to make further appointments until the evaluator gave her copies of confidential documents he received from Father. The evaluation was stalled because the retainer had been nearly exhausted and Father had not indicated when additional funding would be forthcoming. "Much information remain[ed] to be gathered[,]" including interviews of the children. The evaluator also needed further interviews with Mother and Father. The evaluator had not received the CPS reports and had not yet reviewed some of Father's documents. The evaluator concluded: "Althoughthere is no apparent way that additional information, even recantation by the children could refute the indications cited above of sexual and physical abuse, conclusions remain uncertain until all relevant information has been reviewed. Moreover, interviews of the children might reveal some positive feelings about Father, which would be a consideration in favor of contact with him in a therapeutic setting (though not a sufficiently strong consideration to outweigh those discussed above)."

Interim Court Orders and Efforts to Secure Additional Retainer

On July 8, 2011, Mother moved to suspend the reintroduction therapy. Following a hearing, the trial court suspended the therapy and ordered Father to pay the evaluator $3,000 to complete the evaluation. Father failed to do so. With the evaluation stalled for lack of payment, on August 11, 2011, the evaluator again requested the court to order Father to advance the $3,000 retainer. The court granted the order, but Father still failed to pay.

In September 2011, the evaluator notified the parties that he would be refunding the remaining balance of the retainer because he neither heard from them nor received payment. The evaluator sent a check to Father, but it was never deposited.

On October 18, 2011, Father moved to strike the interim report. Although the court agreed an interim report was "unusual," the evaluator had reached some preliminary conclusions, which the court found necessary as the facts of the case were "not typical." In light of Father's concerns about the evaluator's neutrality, the court indicated it would entertain the appointment of a new evaluator should Father file a motion or get a stipulation. Nevertheless, the interim orders would remain in effect.

On July 2, 2012, after receiving no further communication from the parties, the evaluator notified Mother and Father that he had to eitherreturn or shred the documents in his file. Four months later, the court ordered that $5,000 from a community property account be disbursed to replenish the retainer. Father paid the $5,000 on November 19, 2012, but refused to sign a new fee agreement that provided the evaluator an increased hourly rate.

In February 2013, the evaluator sought an order directing Father to sign the new fee...