Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JJP02334 Diane B. Altamirano, Judge.
HUFFMAN, J.
R.T. appeals the dispositional judgment in the juvenile dependency case of his daughter, Mia T. R.T. contends that, as a noncustodial parent, he was entitled to custody because there was not clear and convincing evidence that custody would be detrimental to Mia. R.T. also contends trial counsel representing Mia and her half brother Alejandro L., Jr. (Alejandro), had an actual conflict of interest. We affirm.
We use the term "noncustodial parent" as shorthand for the parent "with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of [Welfare and Institutions Code] Section 300." (Welf. & Inst. Code, § 361.2, subd. (a).) All further statutory references are to the Welfare and Institutions Code.
This appeal does not concern Alejandro. We mention him only when relevant to Mia's case.
BACKGROUND
Mia's mother, L.E., and R.T. separated before Mia was two years old. The Imperial County family court awarded joint legal and physical custody to L.E. and R.T. and designated L.E. as Mia's primary caretaker. The judgment allowed R.T. custody time on alternate weekends and alternate holidays, more time in the summer and telephone contact.
After the separation, R.T. lived in Los Angeles County and had little contact with Mia. He sent her "care packages" but claimed L.E. did not allow him to see Mia or talk to her on the telephone. R.T. tried to obtain relief through the family court, but did not understand the procedure and could not afford an attorney.
In 2006 and 2007 there were child welfare referrals for Mia in Imperial County. The 2007 referral was based on the presence of drugs in L.E.'s home that were accessible to Mia and Mia's positive test for methamphetamine and amphetamine. In September 2010 the Imperial County Department of Social Services (the Department) filed dependency petitions for 10-year-old Mia and one-year-old Alejandro. The petitions were based on the presence of illicit drugs in the home; drug use by L.E. and Alejandro's presumed father, Alejandro L., Sr. (Alejandro, Sr.); and violence by Alejandro, Sr., against L.E. Mia's petition alleged R.T.'s whereabouts were unknown and he had left her without providing for her care and support. Mia and Alejandro were detained in a receiving home, and then with Alejandro's paternal grandparents.
After a medical exam at the receiving home, it was reported that Mia suffered from tension headaches.
The day after the detention hearing, the social worker located R.T. R.T. asked for custody of Mia and telephone contact. Telephone contact began and R.T. visited Mia three times in early October 2010, their first in-person contact in more than a year. Before the second visit, Mia told the social worker, "If my dad takes custody of me, then that's going to kill my mom." Mia also said she did not want to be away from Alejandro because she needed to take care of him. Mia told the court appointed special advocate (CASA) that she would rather be "dead" than live with R.T. Mia never wavered in her desire to stay in Imperial County and not live with R.T. The CASA recommended that Mia remain with Alejandro's grandparents, with visits and family counseling to encourage a bond between Mia and R.T.
In late October 2010 the court dismissed some of the allegations in the petition including the allegation concerning R.T. The court entered true findings and set a dispositional hearing for November 18.
By early November 2010 Mia was visiting R.T. overnight and on alternate weekends. R.T.'s counsel filed a petition for custody (§ 361.2). Mia's counsel filed a motion to continue the dispositional hearing to allow the Department to file a report and to allow a therapist to assess whether Mia should be placed with R.T.
Mia had her first therapy appointment on November 15, 2010. On November 18, R.T.'s counsel asked that R.T. be allowed to participate in the evaluation by Mia's therapist. The social worker said the therapist was in the process of assessing Mia and would contact R.T. "when the time is appropriate." The court suggested that R.T. and L.E. be involved in the assessment and placement recommendation and continued the dispositional hearing and the hearing on R.T.'s section 361.2 petition to January 4, 2011. The social worker stated Mia was amenable to visits with R.T. at Thanksgiving and Christmas, and the court approved the visits.
Mia had her second therapy appointment on November 29, 2010. She did not appear for a December 7 session, and no further sessions were scheduled. Mia and R.T. had an extended visit at Christmas.
The record does not disclose whether the Thanksgiving visit took place.
On January 3, 2011, the Department filed its dispositional report. Attached to the report was a treatment summary by Mia's therapist, dated December 22, 2010. The summary stated: "[Mia] is very upset about the visits with [R.T.]. She doesn't want to visit him because she is not familiar with him, has not had much contact with him during the past years, and is very worried about her visits with [L.E.]. During the second visit [Mia] was very emotional and upset about not being able to spend an extended visit with [L.E.]. The more fearful of losing [L.E.] she becomes[, ] the more resistant and angry she becomes about the visitations with [R.T.]. [¶] She is anxious and worried about [L.E.] and wants to be reunited with her. She is polarized with worry and anxiety about [L.E.].... [¶]... [L.E.] needs help perhaps in accepting that if Mia develops a bond with [R.T.] it will not endanger the relationship with [L.E.]. [Mia] also needs help with this."
The Department's report stated Mia had been referred to therapy because she "was exhibiting severe anxiety and fear regarding visits with [R.T.]." Although there had been only two therapy sessions, Mia's anxiety was decreasing, and she was becoming comfortable with R.T. Mia still wished to return to L.E.'s care and continue living in Imperial County, however. Mia's "greatest fear" was living with R.T. and losing daily contact with Alejandro. In December Mia's therapist told the social worker that placement with R.T. would "cause Mia further emotional trauma" and "remov[e] her from everything she has grown to love." The Department recommended Mia remain placed with Alejandro's grandparents and that R.T. receive visitation and reunification services.
On January 4, 2011, R.T.'s counsel objected to the treatment summary; noted R.T. had not been involved in the assessment and placement recommendation; and requested a continuance. The court continued the dispositional hearing and the hearing on R.T.'s section 361.2 petition to January 18. The court allowed R.T. one telephone contact per day with Mia and visits on alternate weekends.
On January 18, 2011, R.T.'s counsel again objected to the treatment summary. The court did not expressly rule on the objection, but at the end of the hearing said it had read and considered the Department's report "and all relevant evidence." The court noted Mia had clearly stated she was not ready to live with R.T. and found, by clear and convincing evidence, that placement with R.T. would be detrimental to Mia. The court denied R.T.'s petition and ordered that Mia remain placed with Alejandro's grandparents. The court ordered reunification services for R.T. and one visit per month; gave the Department discretion to allow more frequent visits; and set a review hearing.
In addition to the treatment summary and the Department's report, the evidence included the CASA's report and R.T.'s testimony. With Mia in the courtroom, R.T. testified about his "demand" for immediate custody and said he had told Mia that "she might have to go with me... until [L.E.] finishes up what she has to do."
R.T.'S REQUEST FOR CUSTODY
"When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a [noncustodial] parent... who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd (a).) "The juvenile court must make the detriment finding by clear and convincing evidence. [Citations.] 'We review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that that the [child] would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]' [Citation.]" (In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570.)
Because R.T. had absented himself from Mia for most of her life, they had no relationship. By the time he reappeared in her life and requested custody, she had been traumatized by her exposure to drug use and domestic violence. Mia had been further traumatized by her removal from L.E., with whom Mia had lived for all of her life and with whom she was strongly bonded. Mia was also bonded with Alejandro, with whom she had lived for one and one-half years by the time of the hearing. Moving Mia away from Alejandro, and away from the community where she had lived all her life, to a new home with a man who was a virtual stranger, would have caused her severe emotional distress.
R.T. complains that Mia's therapist never contacted him and the treatment summary "did not accurately reflect the current state of Mia's circumstances and feelings about [R.T.]." R.T. cannot prevail on either complaint. The approximately seven weeks that had elapsed between Mia's last therapy session and the hearing was a relatively short time in light of the depth of Mia's emotional trauma and the years during which R.T. had estranged himself from her. Although Mia's comfort with R.T. was increasing, her initial statements that she would rather be "dead" than live with him and that his assumption of custody would "kill" L.E. demonstrate the severity of Mia's emotional distress. This distress dictated a gradual reacquaintance. R.T. needed to learn how to develop a relationship with a traumatized and parentified child. Mia needed the relationship to proceed at a pace appropriate for her emotional state. She was just beginning therapy. Any involvement by R.T. in the therapeutic process was properly deferred until the therapist had developed a rapport with Mia and the therapist determined that R.T.'s involvement was appropriate.
"[O]nce dependency jurisdiction is acquired because of the custodial parent's conduct, the court's inquiry shifts to a focus on the child's best interests, albeit with a preference towards parental reunification....[A]lthough a jurisdictional finding is predicated on parental conduct, a detriment finding for purposes of deciding placement with a noncustodial, nonoffending parent need not be." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.) "Although a detriment finding may not be supportable based on [Mia's] preferences alone, at [her]... age[] of 10..., [her] preferences may be considered." (Id. at p. 1426.) Mia expressed a strong desire not to be moved to R.T.'s home and was securely bonded to Alejandro. "[A] detriment finding can properly be supported by the emotional harm arising from the loss of sibling relationships even in the absence of the noncustodial parent's contribution to the detriment." (Id. at p. 1425.)
The above facts support " 'a finding that there was a high probability that moving to [Los Angeles County] would have a devastating emotional impact on [Mia].' " (In re John M., supra, 141 Cal.App.4th at p.1570, quoting In re Luke M., supra, 107 Cal.App.4th at p. 1426.) Substantial evidence supports the juvenile court's finding, by clear and convincing evidence, that at the time of the hearing, placing Mia with R.T. would be detrimental to her. Consistent with expert advice, the court ordered further visits and reunification services to facilitate the development of a sufficient bond that might make placement with R.T. possible without risking serious harm to Mia.
TRIAL COUNSEL FOR MIA AND ALEJANDRO
At the detention hearing, the court appointed one attorney to represent Mia and Alejandro. R.T. contends an actual conflict of interest arose when he appeared at the next hearing and requested custody and Mia objected based on her relationship with Alejandro. R.T. argues this deprived Mia of effective assistance of counsel and required the attorney to withdraw or be removed from the case.
" 'Generally, parents can appeal judgments or orders in juvenile dependency matters. [Citation.] However, a parent must also establish she [or he] is a "party aggrieved" to obtain a review of a ruling on the merits. [Citation.] Therefore, a parent cannot raise issues on appeal from a dependency matter that do not affect her [or his] own rights.' [Citation.] 'To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the court's decision. A nominal interest or remote consequence of the ruling does not satisfy' the standing requirement. [Citation.] An appellant cannot urge errors that affect only another party who does not appeal. [Citation.]" (In re S.A. (2010) 182 Cal.App.4th 1128, 1134.)
Mia is represented by independent appellate counsel, who reviewed the record and the briefs, and spoke with Mia, her trial attorney and the social worker. Mia's appellate counsel concludes there is no merit to R.T.'s claim of a conflict of interest and asks that we affirm the judgment. Thus, it would be nonsensical to confer standing on R.T. to raise the claim. (In re S.A., supra, 182 Cal.App.4th at pp. 1134-1135.)
In any case, R.T.'s contention lacks merit. While a conflict of interest was possible if Mia's and Alejandro's best interests diverged, there is no indication in the record of a divergence. (In re Zamer G. (2007) 153 Cal.App.4th 1253, 1264-1267.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.