Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. D482576, Lorna A. Alksne, Judge.
HALLER, J.
After the San Diego County Family Court gave David L. (Grandfather) temporary custody of his two young grandchildren, the children's mother, Yvonne A. (Mother), requested the court to return them to her custody. After a hearing, the court granted Mother's motion and ordered the children to be placed with her. Grandfather appeals, contending: (1) insufficient evidence supports the court's findings; and (2) the court erred by failing to appoint independent counsel for the children. We reject these contentions, and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Levi, born in 1999, and Shyanne, born in 2001, are the children of Mother and Levi A. (Father). The couple divorced in about 2003, and Father did not keep in contact with the children.
In 2004, Mother left the minors with Grandfather. Mother had serious drug abuse problems, and also served in the United States Army from October 2004 through February 2005. After being discharged from the Army, Mother initially moved to Montana to live at her maternal grandparents' home without the children. She then returned to the San Diego area.
In August 2005, the family court gave Grandfather and his wife (Grandmother) temporary custody of Levi and Shyanne based on Grandfather's ex parte petition asserting that Mother was living in Mexico and was unable and unwilling to properly care for the children.
Five months later, in January 2006, the San Diego Police Department began investigating Grandfather for possession of child pornography. The investigation was triggered when Grandfather left his briefcase in a restaurant across the street from the family courthouse. Police officers found several sexually explicit photographs inside the briefcase. These photographs included a picture of a naked girl holding lubricant and condoms, with Grandfather standing behind her without any clothes on. The girl looked to be about 11 to 14 years old. Another picture showed Grandfather engaging in a sexual act with the girl. Officers also found pictures of his former wife's 17-year-old daughter standing in a Las Vegas hotel covered in a towel, and pictures of males dressed in female lingerie.
Grandfather told investigating officers that the pictures of the naked girl were taken in a hotel room in Mexico approximately three weeks before his briefcase was found. He said he had met this girl at a Tijuana bar and he thought she was 18 years old. He denied having sexual intercourse with her.
During a subsequent search of Grandfather's home, police officers found additional pictures on Grandfather's computers showing explicit sex acts, including one where Grandfather is "clearly depicted" having sexual intercourse with the young girl in Tijuana. Officers also found numerous videos in Grandfather's bedroom and living room. Some videos contained footage of Grandfather masturbating. Intermixed on the videos was footage of young females at the beach and scenes of typical family-type activities. Another video depicted Grandfather having intercourse with a young female, who was not his wife. Investigators also found numerous sexual devices in the children's bedroom inside a lower drawer of a dresser.
As a result of the police investigation, in July 2006, the San Diego County Health and Human Services Agency (Agency) filed dependency petitions on behalf of six-year-old Levi and four-year-old Shyanne. (Welf. & Inst. Code, § 300, subd. (b).) The Agency alleged the minors were at substantial risk of being sexually abused by Grandfather. The children were detained with Grandmother after Grandfather agreed to leave the home.
In November 2006, the juvenile court dismissed the Agency's petitions after finding there was insufficient evidence to show the minors were at risk. Although the court found that some of the Agency's allegations were true (including that Grandfather had sex with the young girl in Mexico), the court found the grandparents were properly taking care of the children and there was no expert testimony that Grandfather would be a danger to the prepubescent children in his home. The court ordered the children returned to Grandfather under the family court's August 2005 temporary custody order.
Mother filed an appeal from this juvenile court order. She also filed a petition in family court seeking to vacate the family court's August 2005 temporary custody order and requesting the court to award her custody of her two children. Grandfather opposed the petition asserting the children should stay in his custody because the children were doing well and Mother was not fit to take care of her children.
In March 2007, the court held an evidentiary hearing on Mother's family court petition. At the hearing, Mother presented the expert testimony of San Diego Police Detective Brooke Lawson, a highly experienced child abuse investigator. Detective Lawson opined that the young children in Grandfather's care were in danger for sexual abuse because it appeared he was "grooming" them for sexual abuse. Detective Lawson said that "[g]rooming means preparing . . . a child to do what the perpetrator wants them to do." She stated that "as long as these children are with [Grandfather], the grooming behavior will continue. The only time these children will be safe will be out of his presence." Detective Lawson testified that the danger to the children existed even though there was no evidence any sexual abuse had yet occurred.
Detective Lawson based her opinions on an "extensive investigation into [Grandfather's] background," which included the videos and photographs taken by him, "multiple statements from other individuals who know [Grandfather and Grandmother], [and] prior . . . Health and Human Services [investigations]." Detective Lawson was particularly concerned with the lack of boundaries on the videotapes, noting the lengthy videotapes go "back and forth" between normal family activities, and then explicit sexual conduct and masturbation type activities. Detective Lawson explained that a perpetrator will often "place into what would be appropriate videotapes inappropriate sexual behavior as to lower inhibitions of a child, to imply that it is normal behavior to have sexual activity at any age. So a child can see these images over and over again and assume that that is normal behavior and so are willing to participate in it."
Mother testified at the hearing that Grandfather had been abusive to her when she was young and they continued to have a difficult relationship. Mother also said that Grandfather had been stalking her and causes "problems for me everywhere I go." She said that a few days earlier, she woke up with Grandfather standing over her taking pictures while she was sleeping with her nine-month-old son. Grandfather entered the residence without her knowledge or permission.
Mother additionally presented evidence that she was capable of caring for her children. This evidence showed that Mother had a long history of methamphetamine abuse, but that in 2006 she had participated in a 30-day residential drug rehabilitation program and that she had been clean and sober since the end of 2005. She submitted supporting documents showing negative drug tests and hair follicle examinations. Mother testified that she was currently living in San Diego with her infant son, but when she regained custody of her two other children she intended to move back to Montana to live with her maternal grandparents. Mother further presented evidence that her parenting and living situation had been approved by the Montana child protective agency. On cross-examination, Mother admitted she was not currently participating in a 12-step program or any other type of formal drug rehabilitation program.
In opposing Mother's petition, Grandfather submitted several lengthy declarations. In the declarations, Grandfather described that he was substantially involved in raising Levi and Shyanne since their birth when Mother was abusing drugs and unable and unwilling to care for the two young children. Grandfather said that Mother "has a long history of drug and alcohol abuse as well as being abusive and neglectful toward the children. The only stability in their lives has been in our care." Grandfather said that before he gained custody of the children, Mother frequently left them without food or proper supervision. Once he assumed custody, Grandfather enrolled the children in preschool, took them to a pediatric dentist where they had much needed dental work, had Levi evaluated for special education services, met with their teachers, took them to T-ball and dance classes, and involved them in church activities. With respect to Mother's claim that she is no longer using methamphetamine, Grandfather expressed doubt that this was true, but stated that "we don't really know."
With respect to the allegations against him, Grandfather said some of those claims "were completely false and many others were greatly exaggerated. However, some of the allegations were true and I admitted to them. [¶] . . . I admitted to having taken photos of a prostitute in Tijuana. However, I also clearly stated that she told me she was 18 and I believed that she was 19. . . . I also admitted to having a 9-minute tape that was located in the top shelf of the closet in my bedroom—clearly not accessible to the children . . . ." Grandfather denied having any pornographic material accessible to the children and said that he had never done anything inappropriate to the children.
Grandfather also discussed and/or presented copies of reports from a therapist and a social worker, each of whom concluded that Grandfather did not present a danger to his young grandchildren living in his home. It is unclear, however, the extent to which these professionals had the opportunity to view the photographs and videotapes, and speak with other persons with relevant information about the case.
Grandfather also presented a report by Barbara Daub, the children's therapist, who stated the children were doing very well in their current placement with Grandparents, and that "a premature move to a new situation could very likely be emotionally detrimental" to Levi, and that any move should be gradual. She stated that Levi was "very secure in his present placement" and is "very attached" to Grandmother and Grandfather. She noted, however, that both children have stated that they would like to be with their mother. Grandfather also presented numerous other declarations supporting Grandfather's ability to care for the children, including declarations from relatives, the children's pediatrician, Levi's teacher, and Mother's prior therapist.
A Family Court Services counselor, Ginger Navarro, submitted a lengthy report prepared in January 2007. Based on the available information, Navarro recommended that the children remain with the Grandparents on the condition that the Grandparents participate in counseling for sexual boundary issues, and that Mother and Father have liberal visitation. Navarro, however, expressed some doubt as to the proper resolution of the custody issues in the case. Navarro detailed the "complicated" family history, noting "[t]here are serious concerns about each of the parties." She said that Grandfather had engaged in sexual conduct with a young female in Mexico and that the only reason he "was not prosecuted by the police was because they could not find the minor." Navarro also stated that the drug testing "seems to validate" Mother's claim that she had been clean and sober for almost one year. But Navarro noted that "[d]ue to the mother's long history of substance abuse, she will need ongoing relapse prevention treatment for a long period of time." Navarro also said, "[t]he children's attachment to the mother is likely not yet strong due to the long separations over the past few years . . .," but that "the interstate home study of the [October 2006] mother's home . . . recommended the children reunify with their mother while she continues to have treatment, and be monitored by [the Montana] agency. . . . "
After considering all of the evidence and argument, the court ordered the children immediately returned to Mother. In explaining the factual basis for this ruling, the court stated: "[Mother] is drug free . . . . I have a drug test through December of 2006. [¶] The evidence also shows . . . that [Grandfather] has a preference and a sexual desire for young underage females. There's clear evidence of this. That includes the photographs that were confiscated at the coffee shop across the street from this courthouse. . . . The court has viewed every one of [Grandfather's] video tapes, . . . plus the photographs, plus the conduct, the pictures of the young girls at the beach where they clearly did not know they were being spied upon, and the comments that came out of [Grandfather's] mouth were clearly inappropriate, and show a lack of understanding of . . . boundaries. [¶] . . . To leave sexual paraphernalia in a young child's room show[s] a lack of understanding. [¶] . . . [¶] [S]o the court has had to balance Mom's less than stellar rehab. It's not the rehab that I would have ordered for her. She needs to be in rehab right away. She is going to drug test for me every 30 days. But on the good side for Mom on the findings, she is cleared by the . . . home study, to have the children. [¶] The father in this case . . . has agreed . . . Mother [is] to have the children; and . . . Grandparents should have no custody and no contact[.] [S]o I have to weigh that, as well."
The court also expressed substantial concern with Grandfather's conduct of taking pictures of Mother while she was asleep, stating to Grandfather: "I gave you a clear admonition not to ever [videotape visitation exchanges], and to think you would do that two days before your custody trial tells me you . . . didn't understand the court's orders, and the children are at risk in your custody. The fact that you can't understand means you don't know how to protect these children here."
The court concluded: "I'm ordering forthwith the children be returned to Mother, notwithstanding she's used methamphetamine in the past—and this is a very difficult order for me to make. If it's not [Grandfather] and it's not [Mother], it's long-term foster care, it's going to be juvenile court. And we are going to have a review hearing in 45 days. [¶] If you don't test clean every single time you test, if you don't get into AA or NA or some other alcohol rehabilitation program, if you don't have a job[,] . . . if I don't have a full report about that on May 14, those children are coming back to California. I'm sending the district attorney up for them, and they're going into juvenile court, because we have got two sets of problems in this case. [¶] Today, by the preponderance of the evidence, you're going to come out on top." The court and parties then worked out a plan to transfer custody of the children.
Shortly after, Grandfather appealed from this family court order. While Grandfather's appeal was pending, this court dismissed Mother's appeal from the juvenile court order that had dismissed the dependency petition as to Grandfather. (In re Levi A. (Oct. 12, 2007, D049880) [nonpub. opn.].) We determined the appeal was moot because the family court had granted Mother's request for custody of the children. (Ibid.)
DISCUSSION
I. Substantial Evidence Supports Court's Custody Order
The issue at the March 2007 hearing was Grandfather's entitlement to continued custody of the minors over Mother's objections. The Legislature has set forth specific rules governing this type of custody dispute between a parent and a nonparent. (Fam. Code, § 3041.) Section 3041 provides in relevant part:
All further undesignated statutory references are to the Family Code.
"(a) Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. . . .
"(b) Subject to subdivision (d), a finding that parental custody would be detrimental to the child shall be supported by clear and convincing evidence. "
(c) As used in this section, 'detriment to the child' includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents. "
(d) Notwithstanding subdivision (b), if the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c), this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary."
At the hearing, both parties conceded the applicability of this code section, and the court expressly applied the statutory standards. In so doing, the court found that Grandfather was a person described in section 3041, subdivision (c), who had assumed the role of the children's parent for a substantial period of time. Based on this finding, the burden shifted to Mother to rebut the presumption that continued custody with Grandfather was in the children's best interests and parental custody would be detrimental to the children. (§ 3041, subds. (c), (d).) The court made an express finding that Mother had rebutted this presumption.
Grandfather challenges the sufficiency of the evidence to support this finding. In reviewing this contention, we are governed by the fundamental precept that the Legislature provided the trial courts with the "widest discretion to choose a parenting plan that is in the best interest of the child." (§ 3040, subd. (b).) We must uphold a court's custody order if it can be "reasonably concluded that the order . . . advance[s] the 'best interest' of the child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32; In re Marriage of Loyd (2003) 106 Cal.App.4th 754, 758-759.) " ' "An appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts." ' " (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.) " '[W]e have no power to judge . . . the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.' " (In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200.) The testimony of a single witness, even that of the party, may be sufficient to constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
Under these principles, the court's custody decision was fully supported by the record. The evidence revealed that Grandfather has a sexual desire for young girls, and has acted on that desire. The evidence further showed that Grandfather stored sexual devices in a bottom drawer in the children's bedroom, and surreptitiously filmed young women at a public beach while making inappropriate lewd comments about his desire to have sex with them. Father's videotaping was of particular concern because the videotapes were a patchwork of appropriate family type activities with inappropriate sexual scenes and activities. The videotapes were located at the family home and there was evidence showing they were accessible to the children.
Based on this and other evidence, Detective Lawson, who was highly experienced in evaluating child abuse and molestation claims, opined that Grandfather's activities constituted grooming of the two children for possible sexual abuse when they were older. Detective Lawson testified that young children under Grandfather's care would be in danger for sexual abuse. The court, as a trier of fact, had a reasonable basis to agree with the expert's opinion and determine that the children should be removed from Grandfather's care.
The court also had a reasonable basis to place the children with Mother despite her prior drug history. Mother presented evidence that she had not used drugs for about one year, that her intended home in Montana had been approved as a suitable living arrangement for the children, and that she had the desire and ability to properly parent the children. The family court judge, who was able to observe Mother firsthand, was in the best position to evaluate this evidence and determine that placing the children with their biological mother was in the children's best interests. Further, the court made clear that it would continue to monitor Mother's ability to appropriately parent the children and to continue her drug rehabilitation. The court strongly admonished Mother that if she tested positive for drug use, the matter would be referred to juvenile court for dependency proceedings.
In challenging the court's findings, Grandfather focuses on the evidence favorable to him. For example, he describes the evidence showing that the children were doing well in his care and had made substantial developmental progress since they first arrived at his home. However, the court had a reasonable basis to find that despite the positive benefits the children were receiving from living with their grandparents, these benefits were substantially outweighed by the danger of living in a place where they were subject to potential sexual abuse. Essentially, Grandfather is asking this court to substitute its judgment for that of the family court. This we cannot do. " ' "Only upon a clear and convincing showing of abuse of discretion will the order of the trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it is the trial judge's discretion and not that of the appellate court which must control." ' " (Catherine D. v. Dennis B., supra, 220 Cal.App.3d at p. 931.)
In his appellate briefs, Grandfather also repeatedly argues that there was no evidence that the children faced "an immediate risk of harm" while in his care. (Italics added.) However, this is not the standard. The standard is whether Mother met her burden to show the children's best interests would be served by changing custody. The best interests evaluation includes a consideration of the children's long-term best interests, not just a consideration of whether the child is being well cared for on the particular day of the hearing.
We also reject Grandfather's reliance on the conclusions of the juvenile court at the dependency proceeding. The parties and issues at the dependency proceeding were different from here. The issue presented here was whether the children's biological mother, who had never been declared unfit to raise her children, was entitled to a return of custody from the children's grandfather with whom she had temporarily placed the children when she was having difficulties. She presented evidence that leaving the children in Grandfather's custody put them at risk for sexual abuse, and that she was the better caretaker for the children because she had not used drugs for more than one year and was prepared to move with the children back to Montana to a home that had been approved by the Montana state agency.
Substantial evidence supported the court's findings that Mother rebutted the presumption that the children's best interests were served by remaining in Grandfather's care.
II. Independent Counsel for Minors
Grandfather additionally contends the court abused its discretion by failing to appoint independent counsel for the minors.
The family court initially appointed independent counsel to represent the minors in August 2005. In January 2006, the minors' counsel filed a brief focusing primarily on whether the Indian Child Welfare Act applied in the case. In May 2006, minors' counsel filed another brief that discussed the status of the issues and parties. Counsel recommended keeping the children in Grandfather's custody, but at that time the information about Grandfather's sexually inappropriate conduct had not yet been disclosed and counsel was apparently unaware that Mother had stopped using illegal drugs.
Counsel continued to represent the minors' interests through December 2006. However, at some point, the representation was discontinued. At the March 2007 hearing, the minors were not represented by separate counsel. The record does not reflect that Grandfather objected to this procedure or in any other way requested independent counsel be appointed for the March 2007 hearing.
Grandfather now contends the court prejudicially erred in failing to continue the appointment of minors' counsel at the March 2007 hearing. However, Grandfather waived his right to assert error. It is well established that a party will be precluded from raising an error as a ground of appeal where, by conduct or inaction amounting to acquiescence in the action taken, the party waives the right to attack it. " 'An appellate court will ordinarily not consider procedural defects or erroneous rulings . . . where an objection could have been, but was not, presented to the lower court by some appropriate method. [Citations.]' [Citation.]" (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002; North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.)
Even if we were to reach the merits, there was no abuse of discretion. Unlike in dependency proceedings where the appointment is generally required (Welf. & Inst. Code, § 317, subd. (c)), the family court has broad discretion to decide whether to appoint a minor's counsel in custody proceedings. (See § 3150, subd. (a).) Section 3150, subdivision (a) provides: "If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding." (Italics added.)
Grandfather contends the appointment of independent counsel was necessary because counsel could have provided an "independent, current assessment of the minors' position and best interests." However, the Family Court Services counselor presented the court with a detailed independent assessment of the status of the children, and discussed and updated all current issues involved in the case. The parties also submitted a copy of the report by the minors' therapist, who discussed the strong bond between the children and their grandparents.
The record shows that the children's rights and interests were fully considered and protected during the proceedings. The Family Court Services counselor noted that "[m]inor's counsel will continue to benefit the children," but she did not suggest that the appointment of counsel was necessary to a proper determination of the current custody dispute. Moreover, to the extent that an appointed counsel could have informed the court of the children's current preferences, the court was not required to base its decision on the preferences of these very young children, who would be incapable of knowing what would be best for them in the long term. The family court acted well within its discretion in not continuing the appointment of independent counsel.
Moreover, as Grandfather concedes, the failure to appoint minor's counsel is reviewed under the harmless error standard. (People v. Watson (1956) 46 Cal.2d 818, 836.) On our review of the entire record, there is no reasonable probability the outcome would have been different if the court had appointed counsel for the children. The court had before it information showing the children were doing well in the placement and that it would be initially difficult for them to separate from their grandparents. Nevertheless, the court was convinced based on the expert testimony and the other evidence that it was not in the children's long-term best interests if they remained in the placement, and they should be returned to their mother. Even if the court should have appointed separate counsel for the minors and counsel would have recommended the children stay with their grandparents, there is no reason to believe this would have changed the court's decision.
DISPOSITION
Order affirmed. Appellant to bear respondent's costs on appeal.
WE CONCUR: NARES, Acting P. J., IRION, J.