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New Case: Dwight R. v. Christy B., a January 2013 opinion from the Fourth District Court of Appeal

by Michael Tobriner on October 9, 2010

in Family Law,Mediation

The case is Dwight R. v. Christy B., a January 2013 opinion from the Fourth District Court of Appeal. In this messy and unfortunate situation, Dwight, a divorced father of 5-year-old and 3-year-old daughters, sued Christy, a licensed, practicing Marriage and Family Therapist (MFT), along with the girls’ Maternal Grandmother and several San Bernardino social workers (but not the girls’ Mother herself), for conspiring to make a false report to the County Child Protective Services that Dwight was sexually abusing the girls. These defendants’ conspiracy, Dwight said, deprived him of his 5th Amendment constitutional right against unreasonable seizures (of the girls, by CPS) and his 14th Amendment right to “familial association”. A Federal statute, the notorious Section 1983 (42 U.S.C. 1983) makes a conspiracy to deprive a person of his constitutional rights the basis for civil liability, and that’s the law Dwight sued under.

What happened to make Dwight sue?

The judicial result of all this is highly technical and more than a little tangled. But what’s interesting is what happened to cause Dwight to sue. In September of 2008, as part of their divorce proceeding, Dwight and the girls’ Mother met with a family court mediator to work out a custody and visitation agreement. During the mediation Mom “expressed no concern” (all language in quotes is the Court’s) that Dwight had sexually abused the girls, and the mediator’s report did not “mention any concern” about sexual abuse. Dwight agreed to visitation, supervised by his parents, without overnights. At a second mediation five months later in February 2009, Dwight asked for unsupervised overnight visits. Mom said the visits so far had been going well and that the girls probably would enjoy overnight visits, but she said that she “did not trust” Dwight’s judgment and that his parents should still supervise the visits. Mom “expressed no concern that Dwight had or would sexually abuse the girls,” and the mediator’s report did “not mention any concern of sexual abuse”. Dwight and Mom did not reach agreement, but the mediator recommended to the court that Dwight have unsupervised overnight visits.

The plot thickens

In a court hearing just a few weeks later, in March 2009, Mom challenged the mediator’s recommendation and for the first time accused Dwight of sexually abusing the girls. The court “rejected the accusation as unfounded” and adopted the mediator’s recommendation for unsupervised overnight visits. Dwight then had two daytime visits, which “went smoothly”, followed by his first overnight visits on the weekend of March 20 -22nd, which took place at his parents’ house.

The plot thickens even more

Unbeknownst to Dwight, on March 20, right before Dwight’s first overnight visit, Mom and Maternal Grandmother took the elder child (the 5-year-old) for an initial therapy session with Christy. Christy later testified that Mom had first contacted her in February and had told her that the child was exhibiting behavioral problems, acting ‘clingy and whiny’, and wetting her bed. (The subquotes are the court quoting Christy.) At the therapy session, in keeping with her usual practice, Christy asked the child to draw pictures of ‘a tree, her house, herself, and her favorite animal’. Christy claimed that ‘based on the pictures [the child] drew, as it pertained to her father’s house and sleeping arrangements she shared with her father, and based upon my professional opinion, I had a reasonable suspicion that there may be sexual abuse’. Four days later Christy completed what is known as a “mandated” report of her findings and notified CPS. Later that month CPS (including the social worker defendants) instituted juvenile dependency proceedings for both girls. In the course of those proceedings, in an interview with the social workers, the child “denied that anyone had ever touched her inappropriately”. After hearing the case, the juvenile court found no basis for dependency proceedings against Dwight, including any sexual abuse claims, and dismissed the proceedings.

No conspiracy, so Dwight loses

To try to bolster his conspiracy approach, which he needed for his Section 1983 claim, Dwight said (apparently accurately) that the Maternal Grandmother (who worked for the County Education Department), Christy, and the County social workers all had “long standing” professional relationships with each other. But, said the court, Dwight couldn’t bring forward any credible evidence at all, let alone prove, that any of these individuals actually had engaged in concerted action, that is, conspired, to fabricate the report of alleged sexual abuse. That failure alone was enough to doom Dwight’s suit. (I won’t say more here about the legal complexities that barred Dwight from suing; you can read the case for that.)

Dwight’s expert says Christy used unprofessional method and was biased

One final, and most interesting, note. Dwight introduced the declaration of an expert named R.L. Hanlon. Dr. Hanlon was a licensed psychologist and a marriage and family therapist. Dr. Hanlon’s Declaration said that he had ‘never come across a reliable or valid protocol, standard, or guideline that allows anyone to make reliable or valid inferences about the dynamic meaning of children’s drawings’. Dr. Hanlon criticized Christy for the ‘extremely poor method’ she used for obtaining information from the child and for her ‘utterly unfounded assumptions about what that information (that is, the drawings) signified’. Dr. Hanlon concluded that the manner in which Christy handled the case ‘strongly suggests that she approached her evaluation from a mental set of ‘confirmatory bias’, that is, of viewing all information in a light that confirmed her preconceived idea or hypothesis that Dwight was sexually abusing the child.

What do you think?

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