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In re S.A.

March 15, 2010


APPEAL from an order of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Affirmed. (Super. Ct. No. |J517337).

The opinion of the court was delivered by: McCONNELL, P. J.


Kent B. appeals the order declaring his daughter, S.A., a dependent of the juvenile court under Welfare and Institutions*fn1 Code section 300, subdivision (d).*fn2 Kent contends we must reverse the jurisdictional order because of the ineffective assistance of S.A.'s appointed counsel in not interviewing her therapist, the juvenile court's abuse of discretion in excluding the therapist's prehearing statements and limiting her testimony on the ground of S.A.'s invocation of the psychotherapist-patient privilege, and the lack of evidentiary support for the court's finding that Kent sexually molested S.A. We conclude Kent lacks standing to raise the ineffective assistance of counsel issue, and his other contentions lack merit. We affirm the order.


S.A. was born in Trinidad in 1993. Her parents divorced when she was about eight years old, and she lived under difficult circumstances. When she was about nine years old, a neighbor sexually molested her. Her father found out and beat her. In 2003 S.A.'s maternal great aunt, R.G., and Kent, her former husband, who live in San Diego, obtained permission from her parents to bring her here to live with them.

R.G. and Kent intended to adopt S.A. together, but their relationship ended in March 2006 when he commenced dissolution proceedings. R.G. moved out of the home and asked S.A. to live with her. S.A. was not interested, however, because she and R.G. fought and R.G. had threatened to send her back to Trinidad when she misbehaved. Kent proceeded with the adoption alone, and it was finalized in March 2008.

In late 2008 S.A. disclosed to a school official that Kent had sexually molested her. In December 2008 the San Diego County Health and Human Services Agency (the Agency) removed S.A. from the home and placed her at Polinsky Children's Center (Polinsky). The Agency filed a petition on her behalf under section 300, subdivision (d), which alleged that between 2003 and June 2007, Kent sexually molested her, including "digital vaginal touching and penetration, oral copulation and intercourse."

The Agency's detention report states S.A. told the social worker that Kent had sexually molested her between the ages of 10 and 14 years. The molestation stopped when Kent "got a new girlfriend."*fn3 S.A. said she was afraid "her father . . . will harm her since she has finally told the truth." She did not want to return to his home or to have any contact with him. "She stated that she wanted to stay somewhere safe and she is willing to stay in a foster home." Attached to the detention report was a police report discussing S.A.'s disclosures of molestation.

Kent denied S.A.'s allegations. He told the social worker that in 2007 S.A. "began to act strange and evasive." He had read S.A.'s diary and learned she was having sex with a 17-year-old boy, and a 20-year-old man. He confronted the teenage boy, and S.A. became upset. He described her as "emotionally charged."

At the detention hearing, the court detained S.A. at Polinsky and ordered no visitation for Kent. The Agency was to provide voluntary services and referrals to him.

A contested jurisdiction hearing was held over several days in March 2008, during which numerous witnesses testified. In summary, S.A. testified that Kent began sexually molesting her about two months after she moved to San Diego, and he continued doing so until a week before her fourteenth birthday. The abuse began with inappropriate touching and escalated to digital penetration, oral sex and intercourse. A few of S.A.'s friends testified she revealed the sexual molestation to them.

Kent denied ever sexually abusing S.A. He testified that on one occasion he and S.A. were sitting on her bed while he was helping her with homework, and he accidentally touched the inside of her thigh when he reached out to try to keep things from falling off her desk. She became upset and immediately reported the incident to R.G. A few witnesses who knew him and S.A. testified she did not seem afraid of him or reveal any sexual molestation to them. Further, the adoptions social worker who handled Kent's adoption of S.A. testified she never mentioned any sexual abuse, and "was clear with me that she want[ed] to be adopted by Kent."

Kent sought to introduce prehearing statements of a therapist S.A. had been seeing for about three years, Cherie Verber. Verber told the social worker and a police detective that S.A. never revealed that Kent abused her, and Verber did not believe her story. The information was included in the Agency's jurisdiction report, and a San Diego Police Department investigator's report. Kent also sought to elicit Verber's live testimony on the same issue. The court struck Verber's prehearing statements from the reports, and limited her trial testimony based on S.A.'s invocation of the psychotherapist-patient privilege.

On March 26, 2009, the court made a true finding by clear and convincing evidence on the sexual molestation allegation. The court sustained the petition, accepted jurisdiction and removed S.A.'s custody from Kent and continued her in a licensed foster home. The court explained, "Ultimately it's a credibility case, and I do believe [S.A.]" Kent indicated he intended to voluntarily waive reunification services, but he had not yet completed a written waiver form.

Kent moved for a new trial on the ground of newly discovered evidence intended to impeach S.A.'s credibility. The court denied the motion without prejudice as his motion was procedurally improper. He then filed a petition for modification under section 388 requesting that the court reverse its true finding based on the new evidence.

At a hearing on May 14, 2009, the court denied the petition. Kent then submitted a written waiver of reunification services (§ 361.5, subd. (b)(14)), and the court accepted the waiver as knowingly made.*fn4 The court limited Kent's right to make educational decisions for S.A. pending further court order, and appointed a CASA (court appointed special advocate) to make educational decisions for her. The court also scheduled a six-month review hearing, noting "[i]t appears that the child will not be returned home by the next review hearing and a permanent plan would need to be selected." The court then "set her plan as a permanent plan living arrangement."


I. Ineffective Assistance of Counsel

Kent contends we must reverse the court's jurisdictional order because S.A.'s counsel rendered ineffective services by not interviewing her therapist, Verber. His theory is that had counsel interviewed Verber, she would have learned the therapist believed S.A. was lying about Kent's conduct, and thus the outcome of the jurisdictional hearing would have supposedly been different. He states that by failing to properly investigate S.A.'s credibility, her counsel "could not have acted in [her] best interests." Kent cites section 317, subdivision (e), which provides that to represent a child's interest appointed counsel "shall make or cause to be made any further investigations that he or she deems in good faith to be reasonably necessary to ascertain the facts, including the interviewing of witnesses."

The Agency and S.A. assert Kent lacks standing to challenge the competency of her counsel. "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." (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) "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. (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) An appellant cannot urge errors that affect only another party who does not appeal. (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261.)

We conclude that Kent cannot assert S.A.'s statutory right to be represented by competent counsel because that right is personal to S.A. (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1194.) S.A.'s interests do not interweave with Kent's interests. " 'Where the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests.' " (Id. at p. 1193.) Kent asserts he has a personal interest in the matter because he was "falsely labeled as a sexual molester." Harm to a parent's reputation or credibility, however, "is - at best - a 'remote consequence of the ruling' that 'does not satisfy' the requirements for standing." (In re Paul W. (2007) 151 Cal.App.4th 37, 64.)

Most importantly, it would be nonsensical to confer standing on a party, whose interests may be adversarial to those of a minor, when the minor has independent counsel on appeal. This court, consistent with statutes and California Rules of Court, regularly appoints independent counsel for minors on appeal. S.A.'s appellate counsel, after reviewing the matter thoroughly and speaking with S.A., her trial counsel, the social worker and Verber, has not raised the issue of ineffective assistance of trial counsel, and agrees we should affirm the court's jurisdiction order. Kent, who has relinquished reunification services and any potential reunification with or custody of S.A., is hardly in a better position to protect and assert her interests.

In any event, Kent's position lacks merit. The record shows S.A.'s counsel did know Verber believed S.A. was lying, because Verber gave her opinions to the social worker and a police detective without S.A.'s consent, and the opinions were included in reports, copies of which counsel would have had. The information was redacted when S.A. invoked the psychotherapist-patient privilege, but her counsel obviously knew Verber's position on S.A.'s credibility. Kent was not prejudiced because Verber's opinion did not cause S.A.'s counsel to take a different position pertaining to whether the court should exercise jurisdiction, and indeed, she represented to the court that S.A. was of sufficient age and maturity to invoke the psychotherapist-patient privilege to exclude Verber's information.

II. Exclusion of Evidence/Psychotherapist-Patient Privilege


In a related argument, Kent contends the court improperly excluded Verber's hearing statements and limited her trial testimony based on the psychotherapist-patient privilege. The contention lacks merit.

"In ruling on the admissibility of evidence, the trial court is vested with broad discretion. ' "[T]he court's ruling will be upset only if there is a clear showing of an abuse of discretion." [Citation.] " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. . . .' " ' " (In re Cole C. (2009) 174 Cal.App.4th 900, 911 (Cole C.).

"It is established that the psychotherapist-patient privilege applies to the relationship between a dependent minor and his or her therapist. [Citations.] '[T]he purpose of the privilege is to protect the privacy of a patient's confidential communications to his [or her] psychotherapist. [Citations.]' " (Cole C., supra, 174 Cal.App.4th at p. 910.) "In this relationship between a patient and therapist, the patient generally is the holder of the privilege unless the patient has a guardian or conservator." (Ibid.)

In dependency proceedings, the minor's appointed counsel serves as his or her guardian ad litem. (Cole C., supra, 174 Cal.App.4th at p. 910; § 326.5.) "A guardian ad litem is responsible for both evaluating 'the situation and needs of the child' and 'mak[ing] recommendations to the court concerning the best interests of the child.' [Citation.] The guardian ad litem is required to ' "represent and protect the rights and best interests of the child." ' " (Cole C., at pp. 910-911.)

Under section 317, subdivision (f): "Either the child or the counsel for the child, with the informed consent of the child if the child is found by the court to be of sufficient age and maturity to so consent, which shall be presumed, subject to rebuttal by clear and convincing evidence, if the child is over 12 years of age, may invoke the psychotherapist-patient privilege . . . , and if the child invokes the privilege, counsel may not waive it, but if counsel invokes the privilege, the child may waive it. Counsel shall be holder of [the] privilege[] if the child is found by the court not to be of sufficient age and maturity to so consent."*fn5 "Thus, once an attorney has been appointed for a minor in a juvenile dependency matter, the attorney holds the privilege to therapeutic communications sought to be introduced in ...

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