Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD18276, JD18277
Bamattre-Manoukian, ACTING P.J.
Patty D., mother of the children at issue here, appeals from juvenile court dispositional orders that awarded legal and physical custody of one child, K., to K.’s father, who was previously a noncustodial parent; dismissed the dependency proceedings as to K.; and continued a second child, J., in out-of-custody care with family reunification services. Mother contends that (1) the court’s finding that placing K. with her father would not be detrimental to her is not supported by substantial evidence, (2) the court’s order terminating jurisdiction over K. is not supported by substantial evidence, and (3) the court should have appointed separate counsel for the children as an actual conflict of interest existed between them. As we find no error requiring reversal, we will affirm the dispositional orders as to both children.
BACKGROUND
On June 17, 2007, mother brought 11-year-old K., five-year-old J., and an adult male friend with her to a hospital urgent care center. While mother was in an examining room with J., who has autism and needs constant supervision, seeking medication for her back pain, mother’s friend was seen in the waiting room fondling K.’s breasts over her clothes for several minutes and looking down her pants. A nurse called the police, who responded with a social worker. After officers viewed a hospital video recording of the incident and the social worker interviewed the nurse, K. and mother, K. and J. were placed into protective custody. Mother is on medication for bipolar disorder, she reported herself to be a recovered alcoholic who still drinks socially, and she was seeking admission to the hospital. She had left the children on a regular basis in the care of her male friend and other caretakers who failed to meet the children’s needs. Mother’s now estranged husband, who is not K’s father, sexually molested K. when K. was around two years old. K’s father lives in Santa Ana and the whereabouts of J.’s father were then unknown.
On June 19, 2007, the Department of Family and Children’s Services (the Department) filed a petition as to K. under Welfare and Institutions Code section 300, subdivisions (b) [failure to protect] and (d) [sexual abuse], and a petition as to J. under section 300, subdivisions (b) and (j) [abuse of sibling]. The juvenile court ordered the children detained following a hearing on June 30, 2007. K. and J. were not placed together because of concerns regarding K.’s sexualized behaviors. A nurse had reported seeing K. kissing J. on the mouth with her tongue and licking him on his neck.
All further statutory references are to the Welfare and Institutions Code.
Both mother and K.’s father, Antonio S., appeared at the jurisdictional hearing on July 13, 2007, and the court set the matter for mediation when there was no objection to mother’s request for it. The court allowed K.’s father to have an extended unsupervised visitation with K. pending the mediation. K. left town with her father that afternoon.
The social worker’s report and addendums for K.’s jurisdictional hearing and mediation stated that mother was not aware that her friend had been molesting K., as K. never informed her of any inappropriate touchings, and mother vowed to not allow her friend to continue to be a part of her family’s life. K.’s father shared joint legal custody of K. with mother, and has had extended visitation with K. for a number of years. The father has several misdemeanor and felony convictions going back to 1980, was sentenced to prison for three years in 1997, and served time in jail as recently as 2001, due to a substantial drug problem. He has been drug-free and offense-free since 2001. He is permanently disabled due to a 2001 car accident, he works part-time, and he lives in a studio apartment behind his sister’s home in Santa Ana. K. has been staying with her aunt and female cousins in that home. The father is eager to have custody of K., who is the youngest of his three children; his two older children are in their 20s. K. has a very close relationship with her mother and J., and had assisted with J.’s care. K. was torn about the possibility of living with her father because she knew that she would miss seeing her mother, but she stated that she did not have any fear about being placed with either parent. Mother believes that K. is unsafe in the father’s care, even though mother has allowed K. to visit the father at his home for extended periods of time. The social worker recommended that K. be placed with her father, that he be granted legal and physical custody of her, that mother have supervised visitation, and that the court terminate jurisdiction over K. and dismiss the dependency.
The social worker’s report and addendums for J.’s jurisdictional hearing and mediation stated that J.’s father has never met him but does pay mother monthly child support. J. has been a client of the San Andreas Regional Center for approximately three years and attends preschool through the center. He is severely delayed in fine motor and personal skills, is unable to speak very much, uses only a few words, and has temper tantrums. However, he is able to give and receive affection and is affectionate with mother and K. K. assisted mother with J. during supervised visits before K. left for Santa Ana, and K. seemed to have a calming effect on J. The social worker recommended that J. remain out of mother’s custody and that mother, but not J.’s father, receive family reunification services.
Mother, K., and K.’s father and paternal uncle were present for the August 2, 2007 mediation. The matter did not settle and the court set it for a contested hearing on August 17, 2007. As K’s father was willing to submit the matter, the court excused him from the scheduled hearing and allowed him to be available by phone. The court authorized visitation between K. and J., and the social worker informed the court that the children would be seeing each other that afternoon.
The social worker’s addendum for the August 17, 2007 hearing stated that the social worker visited K. in her father’s Santa Ana home on August 16, 2007, and assessed the safety and appropriateness of the home. The report further stated that K.’s father tested positive for methadone on August 2, 2007, but that it is a prescribed medication. Attached to the report was a letter from Recovery Solutions of Santa Ana stating that father has been enrolled in a methadone treatment program there and has abstained from illicit drug use since May 2, 2006.
At the August 17, 2007 hearing, the Department submitted the matter on the social worker’s reports. Counsel for the children informed the court that he was “in favor of the proposed course of legal action that the Department is taking,” and also submitted the matter. Following testimony by the social worker, argument by the parties, and amendment of the petitions to conform to the social worker’s testimony, the court sustained the petitions as amended by a preponderance of the evidence. The court then continued the matter for a disposition hearing on August 30, 2007, and ordered K. to remain with her father pending that hearing.
On August 30, 2007, the matter was continued to October 9, 2007, for a contested hearing at mother’s request.
The social worker’s addendum reports for the disposition hearing states that mother has telephone contact with K. several times a week, and that K.’s father reports that the phone conversations go well. K. is attending junior high school, making friends, and doing very well. She enjoys spending time with her extended paternal family. She has her own bedroom in her paternal aunt’s house, a cousin close to her age also lives in the house, and her father lives in a studio apartment in the backyard of the house. The father works part time while K. is at school and is able to drive K. to and from school daily. The social worker recommended that the court dismiss the dependency and allow K. to continue to reside with her father, and that mother receive supervised visitation with K. at least once a month with the visits alternating between San Jose and Southern California.
J. lives in a foster home in San Jose with foster parents experienced in working with children with autism or other developmental delays, and J. is doing very well. Mother has supervised visitation with J. twice a week. The social worker recommended that mother receive family reunification services for J.
At the hearing on October 9, 2007, counsel for the children and counsel for K.’s father stated that they were in agreement with the social worker’s dispositional recommendations. Counsel for mother stated that mother did not agree with the recommendation as to K.
The social worker testified that she is recommending that K.’s father be given legal and physical custody of K. K. has stated that she misses her mother and brother, and she understands that she cannot see them as often as she used to, but she is happy where she is. K.’s father agrees with the proposed visitation plan and has stated that he supports K.’s relationship with mother. He is willing to either supervise the visits or find a family member who will supervise them. The Department would set up visits between K. and J. to occur while K. visits mother in San Jose.
The social worker further testified that she believes that giving K.’s father legal and physical custody of K. and dismissing the dependency is in K.’s best interest. “First of all, [the father] is a non-offending parent in the case. Although he has not been the primary caretaker for K[.] very long, he has always maintained a relationship with her and she’s always been a part of his life. He fully supports the relationship between K[.] and her mother and wants to continue to allow that to grow and to foster that connection that they have. Since placement of K[.] with her father he has done everything that the Department has asked him to do regarding getting her involved in school, extracurricular activities, counseling, he took her to her medical exam that was ordered by the court. He’s been very up front and honest with the Department regarding any concerns that we might have and it seems to be that he has a very positive relationship with K[.] and that he can meet her needs.”
Mother’s counsel advised the court that mother would like the court to place K. with her father but retain jurisdiction over the matter until it can be shown that a “more realistic” visitation schedule could be put into place in order to assure “that the sibling relationship is intact and will be intact after this case is dismissed and that [mother’s] relationship with her daughter is left intact after the case is dismissed.”
The father’s counsel argued that any lack of visitation between K. and mother and J. in the previous two months was not due to anything father did or did not do. “There is no indication that [the father] is not going to be compliant with” the recommended orders “and he has been compliant with everything thus far.”
After the parties submitted the matters, the court adopted the social worker’s findings and recommendations as to J. As to K., the court granted physical and legal custody of K. to her father. It ordered supervised visits in Santa Ana on the last Saturday of the month in October, February, and June, and supervised visits in San Jose on the last Saturday of the month in December, April, and August. It stated that the parents can agree on a supervisor or the father may supervise the visits. In addition, the parties may petition the family court for a change of the visits “based on the fact that they are not being enforced.” “And the reasons why the court believes this is in the best interest of the child is because the court believes that it’s never in the best interest of these children to be dependents of the state if the family can take care of their own children. I have not found that this father is not a fit parent, he is a fit parent. I too am concerned that you maintain contact with your daughter. But I believe this order has provided enough clarity for that to happen and if it’s not happening enough clarity for you to take it into another court and ask them to enforce it.”
Mother filed a timely notice of appeal as to both dispositional orders.
DISCUSSION
Mother first contends that there is “a lack of substantial evidence that placing the minor, K[.], with her father would not be detrimental to her.” Mother argues that, pursuant to section 361.2, before placing K. with her father, the court was required to find that placement with the father would not be detrimental to the safety, protection, or physical or emotional well-being of K. However, there was insufficient evidence to support the court’s finding on this issue.
Under section 361.2, subdivision (a), the juvenile court must place a dependent child with a previously noncustodial parent who requests custody, unless the placement would be detrimental to the child’s safety, protection, or physical or emotional well-being. Because the noncustodial parent has both a constitutionally protected interest in custody and a statutory right to custody, there must be clear and convincing evidence of detriment to the child before the court can deny the noncustodial parent’s request for custody. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1828; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Section 361.2, subdivision (a), with its heightened standard of proof, effectuates the legislative preference for placement with the previously noncustodial parent. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.) Thus, absent clear and convincing evidence that it would be detrimental to K. to be placed with her father, the law requires placement with him. (§ 361.2, subd. (a); In re Marquis D., supra, 38 Cal.App.4th at p. 1828.)
“When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, 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).)
Section 361.2, subdivision (i), provides in pertinent part: “Where the court has ordered removal of the child from the physical custody of his or her parents pursuant to section 361, the court shall consider whether there are any siblings under the court’s jurisdiction, the nature of the relationship between the child and his or her siblings, the appropriateness of developing or maintaining the sibling relationships . . ., and the impact of the sibling relationships on the child’s placement and planning for legal permanence.” Section 358.1, subdivision (d), requires the social worker’s report to include a factual discussion of the child’s sibling relationships, of why the siblings are not placed together, and of the impact of the sibling relationships on the child’s placement and planning for legal permanence. “[T]he statutes expressly authorize the court to consider sibling relationships when making its placement decisions.” (In re Luke M., supra, 107 Cal.App.4th at p. 1422.) “[A] court is authorized to evaluate the appropriateness of keeping siblings together, and to consider sibling relationships as one factor, among many, when determining detriment for purposes of its placement decisions.” (Ibid.) The social worker’s interviews with and observations of the children and her ensuing opinion and recommendation can provide the court with sufficient information to render its ruling on the issue of the placement of the children. (Id. at p. 1427.)
“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 the children 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.]” (In re Luke M., supra, 107 Cal.App.4th at p. 1426.)
Here, the juvenile court implicitly found that it would not be detrimental to K. to be placed with her father and substantial evidence supports that finding. The record reveals that K.’s father is a previously noncustodial parent who requested custody of K. Although the father has a substance abuse and criminal history, he has been clean, sober, and offense-free since 2001, over five years before he requested custody, and mother had allowed K. extended visits with her father in his family home for some time. K. understood that living with her father meant that she would see her mother and J. less frequently, and she missed them, but she was happy and doing well living with her father. Although a finding of no detriment may not be supportable based on K.’s preference alone, K. was 12 years old at the time of the disposition hearing and the court properly considered her preference. (See In re Luke M., supra, 107 Cal.App.4th at p. 1426.) In addition, K’s father agreed to facilitate regular visitation between K. and her mother and J. Accordingly, the court’s order placing K. with her previously noncustodial father is supported by the record.
Mother also contends that the court’s order terminating dependency jurisdiction as to K. is not supported by substantial evidence. Mother argues that K. was never evaluated to determine whether she needed to be provided services, such as counseling to deal with her sexual abuse. And, the court did not explicitly find that ongoing supervision of K. was not necessary, given her father’s serious criminal and substance abuse history.
When the court places a dependent child with a noncustodial parent, it has discretion to do any of the following: (1) Order that the noncustodial parent have legal and physical custody of the child, with or without visitation with the other parent, and terminate its jurisdiction over the child. (§ 361.2, subd. (b)(1).) (2) Order that the noncustodial parent assume custody of the child subject to juvenile court jurisdiction, with or without services to either or both parents. Any services provided are to allow the offending parent to regain custody and/or the noncustodial parent to retain custody without juvenile court jurisdiction. (§ 361.2, subd. (b)(3).) (3) Order that the noncustodial parent assume custody of the child subject to juvenile court jurisdiction and subject to a home visit within three months. After the social worker files a report regarding the home visit, the court may make another such order or make an order under either option (1) or (2) above. (§ 361.2, subd. (b)(2).)
“[W]hen a nonoffending noncustodial parent requests custody under section 361.2, subdivision (a), he or she is requesting sole legal and physical custody of a child. However, the court may not immediately grant that parent sole legal and physical custody. The court must first determine whether it would be detrimental to the child to temporarily place the child in that parent’s physical custody. If there is no showing of detriment, the court must order the [Department] to temporarily place the child with the nonoffending noncustodial parent. The court then decides whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction.” (In re Austin P., supra, 118 Cal.App.4th a pp. 1134-1135.) We review the court’s order dismissing dependency jurisdiction for abuse of discretion. (See id. at p. 1135; In re Phoenix B. (1990) 218 Cal.App.3d 787, 792-793.)
In this case, the court had found that it would not be detrimental to K. to be placed in her father’s physical custody, and temporarily placed K. with her father. The social worker conducted a home visit prior to the disposition hearing and found that the home K.’s father provided her in Santa Ana was not inappropriate. Because the placement was with K.’s father, “the appropriate investigation is a basic one, less rigorous than the investigation necessary for placement with a more distant relative . . . .” (In re John M. (2006) 141 Cal.App.4th 1564, 1573.) Father did not request or apparently need court-ordered services in order to assume legal and physical custody of K. Nor did the record indicate that K. was in need of continuing dependency court supervision. She is apparently healthy and active in school and extracurricular activities, and the social worker indicated that her father was taking her to counseling sessions. There was no concern that K.’s father did not want long-term custody of K. or that he would relinquish custody of K. to mother after the termination order. (See In re Sarah M. (1991) 233 Cal.App.3d 1486, 1489, disapproved on another point in In re Chantal S. (1996) 13 Cal.4th 196, 204.) Although mother expressed concerns regarding whether her court-ordered visitation with K. would occur, the court made it clear that mother could still seek court enforcement or modification of its order. As there was no substantial evidence of a need for continuing juvenile court supervision, we cannot say that the court abused its discretion in granting K.’s father sole legal and physical custody of K. and in terminating dependency jurisdiction. (In re Austin P., supra, 118 Cal.App.4th at pp. 1134-1135.)
Lastly, mother contends that the court should have appointed separate attorneys for K. and J., as the one appointed counsel had an actual conflict of interest. Mother argues that the conflict arose “at the point the Department made its recommendation to permanently place K[.] with her father in Orange County. This conflict was made even more apparent because there was no recommendation for sibling visitation.” Mother also argues that she has standing to assert the children’s right to independent counsel, and that she has not forfeited the issue by failing to raise it below.
In In re Candida S. (1992) 7 Cal.App.4th 1240, this court concluded that a parent has standing to raise the issue of separate counsel for the dependent children because “independent representation of the children’s interests impacts upon the parent’s interest in the parent-child relationship. [Citations.]” (Id. at p. 1252; accord, In re Cliffton B. (2000) 81 Cal.App.4th 415, 427-428, fn. 6; but see In re Frank L. (2000) 81 Cal.App.4th 700, 702-703 ; In re Daniel H. (2002) 99 Cal.App.4th 804, 809-810.)
The Department in its brief, in which counsel for the children joined, contends that this claim of error is waived as mother did not raise an objection below, and that, regardless, the children’s attorney did not have a conflict of interest in representing both children. Mother contends that it was not her burden to raise the issue below and that it was the court’s duty to ensure that each child received conflict-free representation. (See In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563-564.) We need not decide whether the court erred in not appointing separate counsel for the children, as we find any error was harmless.
“When first appointing counsel in a dependency matter, the court may generally appoint a single attorney to represent all siblings. It would have to appoint separate attorneys if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case—not just the potential for conflict that inheres in all multisibling dependency cases—present a reasonable likelihood an actual conflict will arise. If these specific circumstances exist, the court should appoint separate counsel at the outset rather than await an actual conflict and the possible disruption a later reappointment may cause. After the initial appointment, the court will have to relieve counsel from multiple representation if, but only if, an actual conflict arises.” (In re Celine R. (2003) 31 Cal.4th 45, 58.) “A court should set aside a judgment due to error in not appointing separate counsel for a child or relieving conflicted counsel only if it finds a reasonable probability the outcome would have been different but for the error.” (Id. at p. 60.)
Mother does not contend that circumstances specific to the case presented a reasonable likelihood at the outset of the case that an actual conflict would arise. Mother contends that the court should have appointed separate counsel once the Department recommended that K.’s father be given sole legal and physical custody of K. without an order for sibling visitation. Yet, at the October 9, 2007 hearing in this case, the children’s counsel informed the court that he agreed with the Department’s recommendation. He stated that he spoke with K., that K. was happy where she is, and that he had no concerns about mother and J. being able to visit K. Thus, counsel did not then and does not now believe that the court erroneously compelled him to represent both K. and J. due to the Department’s recommendations. Rather, counsel believed then and believes now that the Department’s recommendations as to both K. and J. are in the children’s best interests. “An attorney for a child is ‘charged in general with the representation of the child’s interests’ (§ 317, subd. (e)) rather than always seeking a result that counsel thinks is legally correct regardless of whether that result is in the child’s best interest.” (In re Celine R., supra, 31 Cal.4th at p. 60.) K.’s father, a previously noncustodial parent, requested custody of K. and was entitled to custody absent a finding of detriment to K. In addition, there is nothing in the record to support mother’s speculation that K.’s separation from J. was detrimental to J. given that he was doing well in his placement and that mother was receiving reunification services as to him. On the record before us, we cannot find that there is a reasonable probability that the outcome of the disposition hearing would have been different had the court appointed separate counsel for K. and J.
DISPOSITION
The dispositional orders of October 9, 2007, are affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.