Joseph D., In re

• Decision Date: 19 October 1993
• Citation: 19 Cal.App.4th 678,23 Cal.Rptr.2d 574
• Court: California Court of Appeals Court of Appeals
• Parties: In re JOSEPH D., a Person Coming Under the Juvenile Court Law SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. MARK D., Defendant and Appellant. D018691.

Page 574

23 Cal.Rptr.2d 574

19 Cal.App.4th 678

In re JOSEPH D., a Person Coming Under the Juvenile Court Law

SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. MARK D., Defendant and Appellant.

D018691.

Court of Appeal, Fourth District, Division 1, California.

Oct. 19, 1993.

Rehearing Denied Nov. 10, 1993.

Review Denied Jan. 20, 1994.

[19 Cal.App.4th 680] Judith Klein, La Mesa, under appointment by the Court of Appeal, for defendant and appellant.

Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy, and Terri L. Richardson, Deputy County Counsel, for plaintiff and respondent.

Linda M. Fabian, San Diego, under appointment by the Court of Appeal, for minor.

TODD, Acting Presiding Justice.

Mark D. (Mark), a resident of Pennsylvania and the father of Joseph D. (Joseph), appeals a judgment under Welfare and Institutions Code section 300 declaring Joseph a dependent of San Diego County Juvenile Court. Mark, who had been awarded custody of Joseph in a earlier proceeding in family court in Pennsylvania, contends the San Diego proceeding violated the Uniform Child Custody Jurisdiction Act

                (Uniform Act). 1  Mark also contends the case should have been transferred to Pennsylvania under the doctrine of forum non conveniens.  Additionally, Mark assigns error to (1) the failure to appoint an independent expert to evaluate Joseph and (2) the visitation order because it delegates too much authority to Joseph's therapist
                

FACTS

This appeal stems from a dependency petition that the San Diego County Department of Social Services (Department) filed on August 18, 1992, in San Diego County Juvenile Court on behalf of eight-year-old Joseph, alleging Joseph was a person who came under Welfare and Institutions Code section 300, subdivision (d), because he had been sexually abused by his stepbrother, David O., and by his father, Mark. Before relating the subsequent history of the case, we will outline the factual background surrounding Joseph and his parents.

Joseph was born on October 24, 1983, the son of Mark and Anna B. (Anna), who had married in 1976 in Pennsylvania. Anna and Mark separated in 1986; in October 1987, a decree of divorce was granted in Pennsylvania. From July 1986 to June 1987, Anna and Mark shared custody of Joseph through an informal verbal agreement. In June 1987, Anna moved with Joseph to California. Joseph visited his father in Pennsylvania during the summer of 1988 and Christmas 1988. In the spring of 1989, Mark moved to Las Vegas, Nevada, with his new wife, and Joseph visited his father there on three occasions during school breaks. Joseph disclosed there was sexual contact, with his stepbrother David, who was two years older, during the first of these visits. Mark and Anna agreed on how Mark would protect and supervise Joseph on future visits.

In June 1990, Mark and Anna agreed Joseph would attend school in Pennsylvania the following year. In August 1990, Joseph moved to Pennsylvania with his father. Anna visited Joseph at Christmas and the following Easter. In June 1991, Joseph moved to San Diego and lived with his mother until August 15, 1991. On July 29, 1991, Anna filed a motion in San Diego County Superior Court for custody of Joseph, among other things. On August 14, 1991, Mark obtained from the Court of Common Pleas of Erie County, Pennsylvania, an order that found jurisdiction over Joseph was with the Pennsylvania court and directed Anna to immediately relinquish custody of Joseph to Mark. The order also set up a custody counseling conference in Erie, Pennsylvania, for October 22, 1991, and directed Anna to appear at the conference.

Anna traveled to Pennsylvania in mid-October 1991 and visited with Joseph during the weekend of October 18 through October 20. On October 20, while driving Joseph to his father's home, Joseph told Anna that the sexual contact by David was continuing and was not a one-time occurrence. Subsequently, the Erie County Office of Children and Youth investigated a report of suspected child abuse and determined the abuse allegations unfounded. The Office of Children and Youth determined, after interviewing David and Joseph, that while there was some mutual touching of the genitals, the contact was more horseplay than assaultive behavior.

Meanwhile, the family court counseling conference was conducted on October 23, 1991, and it was recommended to the Pennsylvania court, among other things, that custody of Joseph shall be shared by the natural parents with the primary residence being Mark's, and Anna shall have custody for the summer and Christmas breaks from school. The Court of Common Pleas of Erie County adopted the recommendations by order dated October 23, 1991. On October 28, 1991, the Court of Common Pleas amended its October 23rd order to give Anna partial custody of Joseph until she returned to California on November 3, 1991, to provide a $2,000 bond shall remain in effect and to have the Office of Children and Youth reinterview Joseph and report back to the court. On November 1, 1991, the Court of Common Pleas issued a new order that stated, in part "[A]fter presentation of the testimony of the parties and the minor child, this Court believes that the natural mother presents a risk of flight with the minor child, and finds that it is in the best interests of the minor child that the natural mother's rights to partial custody be suspended pending her return to California."

Among other things, the order also directed psychological evaluations of Joseph, Anna and Mark be prepared and submitted to the court and ordered Anna to have supervised visitation until she returned to California.

In March 1992, the custody counselor for the Pennsylvania court conducted another family court counseling conference and determined there was not enough of a change of circumstances to warrant a change of custody from the October 23, 1991 order; consequently the court continued the prior order giving Mark primary custody. Anna took exception, and a trial was scheduled for June 26, 1992.

On June 10, 1992, Joseph came to California to begin his summer vacation with his mother. On June 12, 1992, Anna took Joseph to an already-scheduled appointment with Yanon Volcani, a licensed clinical psychologist.

In late June 1992, Joseph and his mother traveled to Pennsylvania for the trial, which was conducted on June 26 and 29. They returned to San Diego in July 1992, and Joseph resumed his therapy sessions with Volcani.

On July 31, 1992, the Court of Common Pleas issued its written findings and order, following the trial. The Pennsylvania court awarded Mark physical custody of Joseph during the school year and awarded Anna partial custody of Joseph during the summer and Christmas and Easter vacation breaks. Among other things, the Pennsylvania court made the following findings of fact:

"12. At the present time, the major source of anxiety in Joseph's life is the ongoing custody dispute of his parents which, without question, is having a negative impact on the quality of his life.

"13. The custody dispute arises almost exclusively out of Anna [B.]'s concern that Joseph is not safe in Mark [D.]'s household. Her initial concern arose out of statements made by Joseph to her and her husband during periods of partial custody.

"14. Mrs. [B.] is genuinely concerned that her son has been sexually abused by Mr. [D.]'s ten (10) year old stepson, David, and that this conduct will continue because of Mr. [D.]'s failure to take the necessary steps to prevent it.

"15. Prior to October 19, 1991 and most probably prior to the summer of 1991, when Joseph was age six (6) or seven (7) and his stepbrother, David, was age eight (8) or nine (9), they engaged in inappropriate touching of each other's genitals. This behavior included episodes where David 'flicked' Joseph's penis and placed toys on it, and there is a report that on one occasion David rubbed his erect penis against Joseph's. On a number of occasions it appears that David was the initiator of the conduct and more aggressive.

"16. There has been no further inappropriate touching since at least October 1991.

"...

"18. Considering the ages of the youngsters at the time of the incidents ... as well as the nature and circumstances of the conduct, the inappropriate touching of Joseph's genitals by David ... does not constitute a pattern of 'severe sexual abuse,' 'sexual battery' or 'sexual molestation.' Nevertheless, it is not acceptable behavior and all reasonable steps must be taken to prevent any further occurrence.

"19. Since discovering the nature and extent of the contact between the boys[,] Mr. D. and his wife have taken effective steps to prevent further episodes. David has participated in counseling and a special program for children of alcoholic parents. (David's natural father is an alcoholic.)

"20. There is no indication whatsoever that Joseph has been at risk of being 'sexually molested' by his ten (10) year old brother at any time since October of Meanwhile, in San Diego in mid to late July, Joseph had begun describing to Volcani touching by David that was far more serious and chronic than previously reported and also named his father and stepmother as perpetrators. On August 4, 1992, the Department received a referral and began an investigation of the purported sexual abuse of Joseph. On August 7, 1992, Joseph was interviewed and examined at the Center for Child Protection of Children's Hospital. During the interview, Joseph related that David had stuck plastic men up his rectum and had tried to make Joseph suck his penis and that Mark had urged Joseph to suck and touch his penis. Also, Joseph said both David and Mark had sodomized him. Additionally, Joseph reported some abuse by his stepmother. No unusual physical findings were noticed during the medical examination.

1991 and there is every indication that the conduct in question has ceased."

Joseph was scheduled to return to Pennsylvania...