Marriage of Carre CA4/1

Filed 1/12/21 Marriage of Carre CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of SUSAN and
STEPHEN L. CARRÉ.
D076813
SUSAN R. CARRÉ,
Appellant, (Super. Ct. No. DN160594)
v.
STEPHEN L. CARRÉ,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
James A. Mangione, Judge. Affirmed.
Susan R. Carré, in pro. per., for Appellant.
Stephen L. Carré, in pro. per., for Respondent.
Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Pettit and Matthew C.
Smith, for Minors’ Counsel Heather Milligan.
The family court on December 6, 2018, appointed attorney Heather
Milligan as counsel for teenage minors B.C. (born 2003) and S.C. (2005)
because of the “high conflict child custody” dispute between their parents,
appellant Susan R. Carré and her former husband respondent Stephen L.
Carré. On September 20, 2019, after interviewing minors in camera with the
parties’ consent, the court at an unreported1 hearing denied Susan’s separate
motions for full legal custody of minors and to dismiss attorney Milligan as
minor’s counsel.
On appeal, Susan, appearing in propria persona as she did in the
family court, claims the court abused its discretion in denying her motions.
Specifically, Susan claims the court failed to recognize the abuse of minors by
Stephen and therefore did not consider their best interest in denying her full
legal custody. She also claims the court erred in refusing to dismiss minor’s
counsel, despite her showing of “good cause” for such dismissal. As we
explain, we reject Susan’s claims and affirm the court’s order.
FACTUAL AND PROCEDURAL OVERVIEW
Susan and Stephen have been engaged in an ongoing family court
matter for about a decade. As relevant to this appeal, the court at a
December 6, 2018 hearing denied for lack of evidence Susan’s request for a
domestic violence restraining order, which request she had filed on November
14 on behalf of herself and minors.
At this hearing the court also appointed attorney Milligan as minor’s
counsel, explaining as follows its reason for doing so: “The incidents and
conduct described [in the request for restraining order] relate to C/V [i.e.,
custody and visitation] issues . . . in which the children have been placed
directly in the middle of the parent’s high-conflict. The Court has concerns
about allegations re father’s conduct and behaviors toward mother and the
children—as well as the impact on the children—but that on this evidence,
1 Unless otherwise indicated, all of the hearings in this case were
unreported.
2
the burden of proof has not been met. The Court also has concerns that the
DVTRO [i.e., domestic violence temporary restraining order] process may
have proceeded as leverage for C/V orders. The Court finds appropriate C/V
orders exist and a pending evidentiary hearing remains on calendar.” (Italics
added.)
Susan’s request for a domestic violence restraining order was
precipitated by her October 23, 2018 ex parte application for an emergency
order regarding custody. Susan claimed it was necessary for her to assume
full temporary custody over minors until they could be interviewed by Family
Court Services (FCS). Susan based her request on an incident that occurred
in September between S.C. and her father. According to Susan, in this
incident S.C. messaged her mother stating she wanted to come home early
from a visit. When Stephen saw S.C.’s message, Susan alleged he had an
“outburst,” cursed and yelled at S.C., and caused S.C. to become fearful and
believe he might “hurt” her.
Susan claimed a change in custody was also needed based on another
incident that occurred in early October when Stephen and his wife
unexpectedly showed up at a football game where S.C. was cheering.
According to Susan, S.C. “has never felt comfortable with her own father
watching her cheer, has described it as ‘creepy,’ and has said she feels as
though he is judgmentally glaring at her.” (Emphasis omitted.) At halftime,
Susan contacted Stephen, telling him he was making S.C. uncomfortable and
suggesting he apologize to S.C. for the September incident. According to
Susan, Stephen replied, “that’s B.S.” and “I don’t need to apologize for SHIT.”
Susan in her October 23 ex parte application added that in May 2018,
S.C. awakened in a panic, telling her mother that she was having suicidal
thoughts. About a week later, Susan received a call from S.C.’s school
3
counselor after other students expressed concern S.C. might “hurt herself.”
Susan claimed both S.C. and B.C. have had “thoughts of suicide and personal
bouts of anger in the home,” which she further claimed “coincided with
episodes of neglect and mental abuse by [Stephen].”
After S.C.’s disclosure about suicide, she started seeing a family
therapist. According to Susan, B.C. also started counseling in 2016 after she
too had discussed suicide. Although Stephen wanted to take his daughters to
counseling, Susan claimed that minors “begged” her not to force them to
attend counseling with their father and stepmother, which Susan concluded
was a “disturbing red flag about the maltreatment” of minors by Stephen and
his wife.
The ex parte application also described other incidents to support
Susan’s claim it was in minors’ best interest that she have full temporary
custody. Susan also alleged that for “several years” B.C. had “beg[ged]” her
to request full custody over her and her sister.
The court on October 24 kept the status quo as to custody and set the
matter for hearing on November 15. On October 24 Susan filed a request for
order seeking among other relief a change in child support and asking the
court to order Stephen to attend anger management classes.
The day before the November 15 hearing, Susan filed her request for a
domestic violence restraining order, as noted. Susan’s request for a
restraining order generally relied on the same set of facts—with the
exception of some additional e-mail correspondence between Susan and
4
Stephen,2 and text messages between B.C. and Stephen3 —that she used to
support her October 23 ex parte request for full temporary custody of minors.
Less than a month after the court denied her request for a domestic
violence restraining order, Susan renewed that request, again on behalf of
herself and minors, based on an incident that took place on December 23.
Susan claimed Stephen, while hugging and saying goodbye to S.C., allegedly
ran his hand down his daughter’s back and touched her “butt,” causing S.C.
to be “creeped” out and leading S.C. to suffer severe “mental/emotional”
injury. Susan also claimed B.C. complained of being touched
“inappropriately” by her father. (Emphasis omitted.) In connection with her
request for a restraining order, Susan renewed her request for full custody of
minors. Susan also reported the December 23 incident to child welfare
services (CWS) and law enforcement.
The court on December 28 granted Susan a temporary restraining
order, provisionally awarded her full legal and physical custody of minors,
and denied Stephen visitation. The court set the matter for a full hearing on
2 The e-mail correspondence is dated November 10, 2018. The
correspondence shows a series of vitriolic e-mails beginning with an incident
that occurred that day at one of B.C.’s games, which led Susan to call law
enforcement. The back-and-forth e-mails also detail myriad incidents of
alleged abuse by both parties over the course of years.
3 The text messages show Stephen apologizing to B.C. about the
November 10 incident at the playing field; Stephen telling B.C. how much he
loved her; and Stephen informing B.C. that he has to “fight” to spend time
with her and her sister and has had to do so for eight years. In one of his
messages a few days later, Stephen told B.C. he missed her and wished they
were “hanging out” together, to which B.C. responded, “Miss u too.” In
another message Stephen told B.C. it was her decision to make whether to
visit with him, not her mother’s. B.C. messaged back, “Idk [i.e., I don’t know]
I just don’t want to be put in the middle of it.”
5
January 10, 2019, which at Stephen’s request was continued to January 25.
On January 25, Susan requested the hearing be continued for eight weeks
based on the ongoing investigation of Stephen by CWS and the “sex crimes”
division of the San Diego Police Department. The court ordered the hearing
continued to March 14, 2019.
On March 1, 2019, Susan renewed her request for full legal custody of
minors. In support of her request, Susan relied on the fact that Stephen was
then subject to a restraining order and was being investigated by CWS and
law enforcement; that the change in custody was necessary given the
seriousness of Stephen’s actions and behaviors; and that “placing the
teenagers in their father’s care poses an immediate risk and danger to the[ir]
emotional and mental health.”
Susan’s March 1 request for custody was accompanied by a nine-page
declaration and 22 exhibits.4 Other than the allegations of inappropriate
touching, Susan’s declaration described many of the same or similar alleged
behaviors and actions by Stephen and/or his wife that were the basis of her
October 23, 2018 request for full legal custody of minors.
At the March 4, 2019 hearing, the court again denied for lack of
evidence Susan’s request for a domestic violence restraining order. The court
found Susan did not show by a preponderance of the evidence that “abuse”
occurred within the meaning of Family Code5 section 6203, subdivision (a)6
4 The exhibits attached to the March 1 request for order are not included
in the record.
5 All further statutory references are to the Family Code unless
otherwise noted.
6
of the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200 et seq.)
The court also found that Stephen did not intentionally or recklessly cause or
attempt to cause “bodily injury” or “engage in any stalking/harassing/other
behavior prohibited” under the DVPA, “including disturbing the mental or
emotional calm of [Susan]”; and that Susan was not in “reasonable
apprehension of imminent serious bodily injury” to herself or “another” party.
As before, the court also found the incidents and conduct described in
Susan’s December 28 request for a restraining order related to “custody and
visitation issues in which the children have been placed directly in the middle
of the parent’s high conflict.” While “concern[ed]” about Stephen’s behavior
toward Susan and minors, the court again expressed “concern” that Susan
may have used the “DVTRO process . . . as leverage for C/V orders.” The
court found the existing custody and visitation order was appropriate and set
the matter for further hearing on March 14.
Stephen on March 8 filed a responsive declaration in opposition to
Susan’s request for full custody of minors. In his declaration, Stephen
addressed the allegations of sexual assault raised by Susan in her renewed
request for a domestic violence restraining order. He noted “all
investigations” by CWS and law enforcement were “closed with no
substantiated abuse or criminal charges.” Stephen further claimed that
Susan made up these allegations in order to obtain increased parenting time
with minors and therefore, more child support.
6 Abuse includes “intentionally or recklessly caus[ing] or attempt[ing] to
cause bodily injury”; “[s]exual assault”; “plac[ing] a person in reasonable
apprehension of imminent serious bodily injury to that person or to another”;
and “engag[ing] in any behavior that has been or could be enjoined” under
section 6320. (Fam. Code, § 6203, subd. (a).)
7
Stephen also raised concerns about Susan’s involvement of minors in
the parties’ ongoing custody and visitation issues. He noted: “In her
declaration filed with the court March 1, 2019, Petitioner details the
conversations she has been having with our daughters which is clearly in
violation of the court’s orders regarding communication with our children and
very inappropriate. The children have an attorney who[se] job it is to discuss
with them the case and their positions in the case. It appears Petitioner is
alleging Ms. Milligan is not doing her job in allowing the children to testify to
what I believe is a witch[-]hunt, she is clearly manipulating our children and
coaching them on what they should or should not be saying or doing. I am
very concerned about the children in her care and it may be time for a[n
Evidence Code section] 730[7] custody evaluation based on her latest
statements to the court signed under penalty of perjury.”
At the March 14 hearing on Susan’s request for change order regarding
custody, the record shows the parties entered into a stipulation concerning
7 Evidence Code section 730 provides: “When it appears to the court, at
any time before or during the trial of an action, that expert evidence is or
may be required by the court or by any party to the action, the court on its
own motion or on motion of any party may appoint one or more experts to
investigate, to render a report as may be ordered by the court, and to testify
as an expert at the trial of the action relative to the fact or matter as to which
the expert evidence is or may be required. The court may fix the
compensation for these services, if any, rendered by any person appointed
under this section, in addition to any service as a witness, at the amount as
seems reasonable to the court. [¶] Nothing in this section shall be construed
to permit a person to perform any act for which a license is required unless
the person holds the appropriate license to lawfully perform that act.”
8
visitation based in part on a March 12, 2019, 12-page confidential8 report of
FCS (hereinafter, FCS report). The FCS report noted that this was the
parties fifth conference at FCS since 2010; that each party expressed myriad
concerns about the other party, as summarized ante; and that both parties
discussed a possible parenting schedule, with Susan stating she wanted sole
legal custody of minors, and Stephen proposing a visitation schedule in which
they would share legal custody of minors, and in which he would participate
in conjoint therapy with minors.
The FCS report also summarized an interview of minors that took place
on January 9, 2019. According to the interviewer, minors were willing to
visit with their father, including overnights. Based on the minors’ interview,
the FCS report concluded that Susan had inappropriately involved minors in
the parties’ conflict, and that Stephen at times had yelled at and insulted
minors, and had anger outbursts.
The FCS made a number of recommendations, including that the
parties would share legal custody of minors if the restraining order was
dismissed (as turned out to be the case); that Susan would have primary
physical custody of minors, with parenting of minors based on a proposed
visitation schedule, as noted; that both parties were to participate in
individual counseling with a licensed mental health professional; and that
S.C. and Stephen would participate in conjoint counseling with a licensed
mental health professional.
In its March 14 minute order, the court confirmed its earlier ruling
denying Susan’s renewed request for a domestic violence restraining order.
The minute order further provided that “any future requests for a restraining
8 The FCS report is included in the record. Given its confidential nature,
we merely summarize various points in that report relevant to the issues on
appeal.
9
order [by Susan] shall not include any allegations prior to today’s date.”
(Italics added.) The March 14 minute order also adopted with modification
the recommendations made in the FCS report, as further agreed to by the
parties in their stipulation.
Susan on April 9 filed an ex parte application to set aside the March 14
order. Susan’s April 9 application included 19 exhibits.9 Susan stated ex
parte relief was necessary because minors wanted to speak to the court
directly before going into a “potentially harmful environment” with their
father. The next day the court denied Susan’s request for ex parte relief,
noting these issues “have been addressed.”
Less than a month later, Susan renewed her request for full custody of
minors. In her May 3 request, Susan asked the court to order “emergency
[FCS] interviews with the children and parties,” and for Stephen to undergo
an Evidence Code section 730 evaluation. Susan’s request included 22
different reasons why the court should grant her relief. The request was set
for hearing on June 21.
On May 24, Susan lodged 28 exhibits10 in support of her May 3
request. She also separately filed an income and expense declaration. In the
latter declaration, Susan sought additional child support because over the
previous nine months minors had been living with her 95 percent of the time.
Susan on June 14 filed a declaration regarding notice of request for
temporary emergency ex parte orders. Stephen on June 18 moved for his own
ex parte relief against Susan based on her failure to follow court orders by
continuing to speak with minors about the court-ordered visitation plan. On
9 None of these exhibits are included in the record.
10 As before, none of these exhibits are included in the record.
10
June 19, the court found no emergency orders were warranted, setting the
matter for further hearing.
On June 21, Susan filed an ex parte application in support of her
request to “replace minor’s counsel . . . prior to any future hearings and to
ha[lt] dealings/interactions with the teenagers” among other relief. Susan
also requested minors be allowed to testify without minor’s counsel present.
In her application, Susan claimed attorney Milligan had not been
acting in the best interest of minors, had been interfering in minors’ therapy
without their consent, had proven to be “extremely biased,” and has “lacked
professionalism,” all of which Susan claimed was causing the “teenage
children . . . to suffer.” Attached to Susan’s June 21 request were two type-
written letters, one signed by B.C. only, and the other signed by both girls.
The two-page April 21 letter asks the court to reconsider its visitation
order because there allegedly had “been no changes or improvements with
what we see of our dad[’]s behavior and actions.” The letter concludes with a
request that the court speak with minors before forcing them to begin visits
with their father “in 2 weeks, less than that by the time this letter reaches
you.” This letter is signed by both girls.
The first line in the June 17 letter reads, “I am writing to you because
my sister and I would like a new lawyer and I do not want our father to take
full custody.”11 (Italics added.) The letter goes to explain why B.C. and her
sister “cannot trust” attorney Milligan, including because neither B.C. nor
S.C. are comfortable visiting their father, as he was “lying a lot, whether it’s
11 We note from the court’s earlier ruling that the parties would share
legal custody of minors, with Stephen having visitation as ordered by the
court and as agreed to by the parties in their stipulation, with Susan having
primary physical custody. The record shows Stephen never requested full
custody of minors.
11
in the documents, out of the documents, to [her] face, and more.” The letter
concludes by asking the court for “help,” and is signed only by B.C.
Susan followed up her June 21 ex parte request to dismiss attorney
Milligan as minor’s counsel with a more detailed June 24 application for such
relief. The court set the matter for hearing on July 31. Susan’s lengthy
application again accused minor’s counsel of being untrustworthy, including
“blocking the children’s voices from being heard in court.” (Emphasis
omitted.) Susan also alleged minor’s counsel had “concealed evidence of
shameful betrayal of her clients’ interest despite her professional oath”; had
“failed to present her personal knowledge and physical evidence that
supports the just cause for both previously issued restraining orders”; had
“obtained personal disclosures from both of her minor clients”; and had failed
to be a “neutral fact finder,” instead imposing her will on minors while “bad-
mouth[ing]” Susan. In support of her June 24 detailed application to remove
minor’s counsel, Susan lodged nine exhibits.12
Stephen opposed Susan’s request to dismiss minor’s counsel, modify
child custody and visitation, and require minors to undergo “emergency” FCS
interviews and him an Evidence Code section 730 evaluation. Stephen again
expressed concern that, despite the court’s previous admonishment and
orders, Susan continued to involve minors in the parties’ custody and
visitation issues, and to coach them on what they should or should not be
saying or doing on such issues; and that Susan was interfering in the
attorney-client relationship between attorney Milligan and minors, including
by reading text messages between them, because Susan did not agree with
attorney Milligan’s independent professional views when it came to custody
12 None of the nine exhibits in support of Susan’s request to dismiss
minor’s counsel are included in the record.
12
and visitation. Stephen noted that minors already had been interviewed by
FCS in January 2019, and thus argued that another interview, much less on
an emergency basis, was unnecessary.
Susan on July 24 filed her third request for a domestic violence
restraining order within about a nine-month period. She again alleged
Stephen engaged in sexual misconduct with minors. As was the case in her
December 28, 2018 request for such an order, Susan reported the alleged
incident to CWS and law enforcement.13 As before, Susan sought a change
in custody and visitation in connection with her renewed request. However,
unlike her previous two requests, this time the court refused to issue a
temporary restraining order, ruling: “These issues have previously been
raised in this case. Rulings concerning these issues were adverse to
Petitioner. This is a custody and visitation issue.”
On July 29 attorney Milligan filed a statement of issues, contentions,
and proposed disposition of the case. Without waiving the attorney-client
privilege, attorney Milligan apprised the court of “the sentiment” conveyed to
her by minors and minors’ mental health professionals to assist the court in
determining minors’ best interest.
Attorney Milligan in her statement noted she had met individually
with Susan and Stephen, and with minors at their respective schools, which
she viewed as a neutral location. Attorney Milligan obtained and read all the
reports from CWS. She also met with B.C.’s school counselor; S.C.’s
individual therapist; B.C.’s individual therapist; Stephen’s wife; and
13 We note even before this latest referral the FCS report documented a
total of 12 prior referrals to CWS, nine of which were received after October
1, 2018. Stephen was alleged to have been the perpetrator in five of the nine
referrals. None of the referrals against Stephen, including this most recent
one, was substantiated.
13
detectives from the San Diego Police Department child abuse unit and sex
crimes division. Attorney Milligan unsuccessfully attempted to meet with
S.C.’s school counselor, and left a message for S.C.’s cheer coach that was
never returned. Attorney Milligan noted Stephen had completed the court-
ordered anger management course, as he produced a certificate of completion
dated March 14, 2019.
As of March 2019, attorney Milligan reported that she had not received
any evidence of any conduct by Stephen that rose to the “level of a TRO[,] nor
had [she] received any corroborated evidence or concerns substantiating the
need for supervised visits”; that minors and their father would benefit from
“therapeutic intervention, not just due to the dearth of contact for several
months but to assist them in the future in terms of opening the lines of
communication so that [minors] felt empowered to tell their father what
makes them uncomfortable or otherwise how to meet their emotional needs”;
that while Stephen’s conduct “did not rise to the level of a safety risk, he
could benefit from some education on boundary-setting and parenting
teenage daughters”; and that Susan’s “ability to properly understand,
appreciate and convey her daughters’ needs and preferences as they related
to Father” was concerning.
Regarding the latter point (and without waiving the privilege), attorney
Milligan in her statement noted that the information she was receiving from
minors was “not congruent” with the information Susan was relaying about
how minors felt about their father; that once all the investigations of Stephen
by CWS and law enforcement found no wrongdoing, instead of Susan viewing
those results as “good news” she “continued with the narrative that Father
was not safe for the girls”; and that despite the conclusion of professionals—
both “individually and independently”—that Stephen’s conduct was “not as
14
egregious or abusive as [Susan] had initially thought,” she in response
“return[ed] to court with renewed vigor.”
Attorney Milligan’s statement then included a series of proposals,
including therapy for minors and the parties, and allowing for overnight
visits between minors and their father that, if successful, could lead to “equal
timeshare, again assuming no articulated concerns by the mental health
professionals to minor’s counsel.”
Attorney Milligan noted that B.C., on a scale of 1 to 10 with 10 being
the safest, reported being an “8/9” when at her father’s home; and that S.C.
reported being an “8.” Attorney Milligan also noted both girls “denied any
inappropriate touching constituting sexual abuse” by their father.
Attorney Milligan’s statement then addressed events occurring after
the March 2019 hearing. She noted that Susan had not provided any proof of
enrolling in court-ordered therapy; that she remains concerned Susan is
compromising the attorney-client relationship between minor’s counsel and
minors, including lodging their actual communications in support of Susan’s
litigation strategy; and that she had concerns regarding the April 21 and
June 17 type-written letters allegedly prepared by minors.
Attorney Milligan’s statement includes myriad reasons why she
doubted minors prepared either letter. Specifically, she noted that the letters
were both “quite sophisticated” and included the “name, address and contact
information for their specific judicial officer, especially because it has
changed since the beginning of the case and even since [her] appointment”;
that she doubted minors’ pediatrician would suggest minors write the court
directly, as set forth in the April 21 letter, as opposed to seeking advice from
their appointed legal counsel and/or their mental health professionals; and
that although the April 21 letter stated minors had seen no improvement in
15
their father’s behavior, as of that date minors “had not even had their first
conjoint session with Father, thus making it impossible for them to have seen
any improvement,” nor had they “experienced any time in their Father’s
physical care (although . . . they had exchanged some text messages).”
Attorney Milligan also detailed her communication with the conjoint
therapist. Attorney Milligan, as allowed by court order, even attended one of
the therapy sessions with Stephen and minors in June 2019. The therapist
reported that Susan “sends her numerous emails about the girls’ feelings
about Father, and then most recently about the new CWS referral.” Susan
also advised the therapist she could no longer afford to pay her share of
therapy costs and thus was reluctant to schedule another conjoint session.
Attorney Milligan added, “[B]ased upon [the therapist’s] first contact
with the girls, she would never have seen the current situation occurring,
namely, the almost outright refusal to have contact with Father. She got the
impression that these girls wanted a relationship with their Father and while
there were issues to address, the severity was not like she sees in other cases.
She experienced the girls to be motivated and articulate . . . . [The therapist]
confirmed to me that she did not see any indication of discomfort or
unwillingness to disclose any issues with me” during the June 24 session she
attended.
Attorney Milligan in her statement did not feel the need to respond or
defend herself from Susan’s myriad accusations. Attorney Milligan
nonetheless noted that minors have confided in her and she is unable or
unwilling to disclose those privileged communications; that Susan thus has
made a series of “suppositions and conclusions, either based upon what
[minors] then tell her, or based upon what she wants to hear or believe”; and
16
that other than usurping privileged messages between minors and attorney
Milligan, Susan has no way of knowing what minors tell her.
Attorney Milligan added that at no time had minors’ therapist reported
minors being uncomfortable while being represented by attorney Milligan;
that at no time have minors told attorney Milligan they did not trust her or
did not want her to continue as their appointed counsel, or that they
considered her rude and condescending, as Susan had alleged; that she has
never “bad-mouthed their mother to them, nor ha[s she] bad-mouthed their
father”; that she ascertains what minors “would like [her] to relay and not to
relay—to the Court”; and that time and again minors have articulated to her
and CWS they would like the litigation between their parents to “cease.”
In the conclusion section of her statement, attorney Milligan
recommended that if she was removed from the case, the court should
continue to involve a neutral professional “not just to work with the family
but also to advise the Court,” as she felt “strongly” that without such an
individual “the relationship between [minors] and Father may becom[e]
increasingly more difficult to mend.” She added, “This relationship has been
deteriorating quickly, over just the past year, and the evidence does not
appear to point in the direction—solely—of Father or his lack of efforts.
Father is not the victim in this case, however, and he continues to have areas
in which he needs to work with his individual therapist and the conjoint
therapist. But my clients deserve a relationship with their Father and they
are the true victims of the constant CWS referrals, inconsistent therapeutic
interventions, numerous legal proceedings and parents unwilling, or unable,
to co-parent and work collaboratively with each other and the professionals
for the best interests of their daughters.”
17
Attorney Milligan also concluded Susan was “either unable or
unwilling” to allows minors to have a relationship with their father, “perhaps
for fear that it will impact her relationship with her daughters, among other
reasons. It doesn’t seem as though she sees the value—for her daughters—in
mending that relationship and allowing [minors] a relationship with both
parents.” As such, Milligan recommended the court consider appointing an
Evidence Code section 730 evaluator to address attorney Milligan’s concerns
and “ensure these father-daughter relationships aren’t ignored or severed
forever.”
At the July 31 hearing on Susan’s motion to dismiss minor’s counsel,
the minute order shows the court’s tentative was to deny that motion and for
attorney Milligan to continue as appointed counsel. The minute order also
shows the parties agreed to allow the court on August 26 to interview minors
in camera, with a court reporter present and the contents of the interview
sealed.14
Susan on August 16 renewed her request for an increase in child
support and sought payment of money she claimed Stephen owed her. Susan
lodged 59 exhibits in support of this request.15 That same day, Susan filed a
49 page “declaration” in further support of her motion to dismiss attorney
Milligan as minor’s counsel. The record shows minors were interviewed by
the court on August 26, with the transcript sealed.
14 We note Susan sought to augment the record to include the sealed
transcript of minors’ August 26 court interview. We granted in part that
request but when Susan did not pay for the transcript as required by the
superior court, we ordered the case to proceed without the transcript.
15 As before, none of the 59 exhibits are included in the record.
18
Susan on September 13 filed yet another “declaration” in support of her
motion to dismiss attorney Milligan. Susan’s seven-page declaration was
more of the same, as she complained about Stephen, and the alleged
irreversible emotional trauma he was causing minors who allegedly did not
want to be with him; about Stephen’s lawyer, who allegedly was trying to
take advantage of a “single, disabled mother who is self-represented”;
(emphasis omitted); and about attorney Milligan, including asking the court
to reject any additional reports by her after minors’ August 26 interview.
In anticipation of the September 20 hearing, attorney Milligan on
September 16 filed a supplemental statement updating the court since the
last hearing. Attorney Milligan noted minors had consented to allow her to
share the substance of their most recent conjoint therapy session with their
father. In that session, minors discussed the incident in a clothing store with
their father that had led Susan to call CWS and law enforcement. Minors
noted that with the “Me Too” movement, they were hypervigilant about
anyone touching them, including their father, who during the session stated
he innocently had touched S.C. while “simply leading her through the store.”
Attorney Milligan relayed that when minors told their mother about
the store incident, she blew it out of proportion and called police, “even when
both girls were begging her not to call the police.” Both S.C. and B.C. stated
during the session that a restraining order against their father was
unnecessary; that their mother “assigns every incident, behavior or comment
to being a symptom or a disorder that needs to be labeled and treated”; that
their mother “often wants to define their mood swings as abnormal and
symptomatology that needs further assessment and treatment” when they
“just feel they have normal teenage angst and mood swings”; that their
mother at times will even look up diagnoses with them “and try to figure
19
out . . . what disorder they have”; that they “are exhausted about talking with
Mother—and anyone else, at this point—about Father, and their mood
swings and the legal process”; and that they feel safe with their father and
“ideally” would like to “spend time with him together, as siblings.”
The minute order from the September 20 hearing shows the court, after
hearing from the parties, affirmed its tentative and denied Susan’s motion to
dismiss attorney Milligan as minor’s counsel.16 The minute order also
provided that conjoint therapy would continue twice a month, and at the
therapist’s discretion as to manner; that the parent who was in the better
position to transport minors would provide the transportation; and that all
previous orders regarding custody remained in effect. Finally, it noted Susan
had declined to move forward with her renewed request for a domestic
violence restraining order against Stephen.
DISCUSSION
A. Presumption of Correctness
On appeal we presume the trial court’s judgment or order is correct.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant bears
the burden of demonstrating otherwise. (Spitler v. Children’s Institute
International (1992) 11 Cal.App.4th 432, 442.) “As the party challenging a
discretionary ruling, [appellant has] an affirmative obligation to provide an
adequate record so that we [can] assess whether the court abused its
discretion.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 (Wagner).)
Although Susan is in propria persona, she is held to the same “restrictive
procedural rules as an attorney.” (Leslie v. Board of Medical Quality
Assurance (1991) 234 Cal.App.3d 117, 121.)
16 The court’s September 20 minute order was memorialized in a January
31, 2020 order after hearing, which order is the basis of this appeal.
20
Where, as here, “no reporter's transcript has been provided and no
error is apparent on the face of the existing appellate record, the judgment
[or order] must be conclusively presumed correct as to all evidentiary
matters. To put it another way, it is presumed that the unreported . . .
testimony would demonstrate the absence of error. [Citation.]” (Estate of
Fain (1999) 75 Cal.App.4th 973, 992 (Fain), italics omitted.) Thus, without a
reporter’s transcript of the September 20, 2019 hearing when the court
denied both Susan’s request for full legal custody of minors and to dismiss
attorney Milligan as minor’s counsel, we must presume the court heard and
relied on testimony supporting both rulings. For this reason alone, Susan
has failed to meet her burden on appeal to affirmatively demonstrate
reversible error. (See Wagner, supra, 162 Cal.App.4th at p. 259.)
In any event, the record contains ample evidence to support the court’s
tacit finding that it was in the best interest of minors for their father Stephen
to share with Susan legal custody of their daughters.
B. Custody
1. Guiding Principles and Analysis
Under California’s statutory scheme governing child custody and
visitation determinations, our overarching concern is the best interest of the
child. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Trial courts and
families are provided wide discretion in choosing a parenting plan without
any presumptions or preferences for or against joint custody. (§ 3040, subd.
(c).)
“The standard of appellate review of custody and visitation orders is
the deferential abuse of discretion test. [Citation.] The precise measure is
whether the trial court could have reasonably concluded that the order in
question advanced the ‘best interest’ of the child.” (In re Marriage of Burgess
21
(1996) 13 Cal.4th 25, 32 (Burgess).) “ ‘Where minds may reasonably differ, it
is the trial judge’s discretion and not that of the appellate court which must
control.’ ” (In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1492.) A
family court’s order must be affirmed as long as it is within the bounds of
reason and within the range of options allowed by relevant criteria, and is not
an “ ‘ “arbitrary, capricious, or patently absurd determination.” ’ ” (In re
Stephanie M. (1994) 7 Cal.4th 295, 318.)
In reviewing a child custody order for abuse of discretion, we apply the
substantial evidence standard to the trial court’s factual findings. (Burgess,
supra, 13 Cal.4th at p. 32.) In so doing, we view the evidence in the light
most favorable to the order. (In re Marriage of Drake (1997) 53 Cal.App.4th
1139, 1151.)
2. Analysis
Here, substantial record evidence supports the court’s finding that it
was in minors’ best interest for Stephen to share legal custody of minors with
Susan. The record shows minors, who are teenagers, wanted to have a
relationship with their father, as they expressed in their January 2019
interview with FCS, and through their conjoint therapist and minor’s
counsel. (See § 3042, subd. (a) [“If a child is of sufficient age and capacity to
reason so as to form an intelligent preference as to custody or visitation, the
court shall consider, and give due weight to, the wishes of the child in making
an order granting or modifying custody or visitation”].)
Indeed, on a scale of 1 to 10, with 10 being the safest, B.C. stated she
was at an “8/9,” and her sister S.C. at an “8,” in terms of feeling safe when
with their father during visits in his home. Both girls denied any
inappropriate touching by Stephen of a sexual nature; and both said “ideally”
they would like to spend time with him together, “as siblings.”
22
Moreover, the record shows the court interviewed minors in camera on
August 26, less than a month before the court ruled that Susan and Stephen
would continue to share legal custody of minors. Although the sealed
transcript of the interview was not included in the record, we must presume
during this interview that minors likewise expressed a desire to continue
visitation and have a relationship with their father, despite their mother’s
repeated allegations otherwise. (See Fain, supra, 75 Cal.App.4th at p. 992
[recognizing that without a reporter’s transcript, a judgment or order must be
conclusively presumed correct as to all evidentiary matters].)
What’s more, the record shows FCS recommended Stephen share
custody of minors with Susan, based in part on the January 2019 interview of
minors. According to attorney Milligan and the conjoint therapist, minors
and their father also were making progress to “mend” their relationship; that
minors also shared this view; that this relationship was important for minors’
well-being; and that Stephen had taken steps to improve his relationship
with his daughters, including completing a court-ordered anger management
class.
Also according to attorney Milligan, Susan was either “unable or
unwilling” to allow minors to have a relationship with their father, and to
recognize it was in the best interest of minors to have a relationship with
both parents. Attorney Milligan found concerning that Susan was failing to
heed the wishes of minors for the fighting between their parents to “cease,” as
minors had grown weary of discussing their father, custody and visitation
issues, and the legal process.
The court raised similar concerns in at least two of its minute orders
when it noted Susan was using the “DVTRO process” as “leverage” in the
ongoing custody dispute with Stephen, a point borne out by the lengthy
23
record in which Susan on three occasions within about a nine-month period
sought a domestic violence restraining order against Stephen, while at the
same time seeking full custody of minors through that process and separately
through various requests for orders. We thus conclude substantial evidence
supports the court’s finding it was in minors’ best interest for their parents to
share legal custody, ending the custody issue once and for all.
Susan’s opening brief goes into great detail summarizing the “evidence”
she proffered in her myriad court filings—without including in the record the
supporting exhibits, as we have noted—to show the court abused its
discretion when it ordered the parties to share legal custody of minors. We
have summarized that “evidence” in our lengthy factual summary based on
our independent review of the record.
Although, as we have noted, Susan is appearing in propria persona in
this appeal, her status as such does not exempt her from the rules of
appellate procedure or relieve her of their burden on appeal. (See Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 984; see also Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1247 (Nwosu) [noting self-represented litigants “must
follow correct rules of procedure” and their failure to do so forfeits any
challenge on appeal].)
As part of that burden, Susan was obligated to provide a statement of
facts in her opening brief in conformance with California Rules of Court,17
rule 8.204(a)(2)(C), which requires a “summary of the significant facts limited
to matters in the record.” Under this rule, Susan was required to
“summarize all the evidence presented” in the hearing(s) to change custody
and/or dismiss attorney Milligan. (See Silva v. See’s Candy Shops, Inc.
(2016) 7 Cal.App.5th 235, 260, italics added; Schmidlin v. City of Palo Alto
17 All further rule references are to the California Rules of Court.
24
(2007) 157 Cal.App.4th 728, 738 (Schmidlin) [recognizing that a “ ‘party who
challenges the sufficiency of the evidence to support a particular finding must
summarize the evidence on that point, favorable and unfavorable, and show
how and why it is insufficient’ ” (italics added), or risk having the claim of
error forfeited on appeal].)
Susan’s factual summary in her opening brief is decidedly one-sided, in
contrast to the record evidence. By way of example only, Susan’s summary of
the content of attorney Milligan’s July 29 statement was limited to the
following two sentences: “Milligan’s statement primarily focused on custody-
related issues and not issues raised in Appellant’s moving papers. Milligan
did not discuss any disclosures of abuse made by her clients to CWS or
SDP[D].”
Susan neglected to mention that in this statement minor’s counsel
reported she saw no evidence of any conduct by Stephen that supported
issuance of a restraining order or any corroborated evidence substantiating
the need for supervised visits between him and minors; that minor’s counsel
came to this conclusion after reading all the reports from CWS, meeting with
minors, the child abuse and sex crimes unit of the San Diego Police
Department, and others; that without waiving the attorney-client privilege,
the information minor’s counsel was receiving from minors was “not
congruent” with the information Susan was relaying about how minors felt
about their father and allegedly not wanting to have a relationship with him;
that the minors felt safe when visiting their father in his home and denied
any inappropriate touching constituting sexual abuse by him; and that the
conjoint therapist also communicated to minor’s counsel that minors wanted
a relationship with their father.
25
Clearly, Susan’s description in her opening brief of the contents of
minor’s counsel’s July 29 statement does not satisfy her burden to present all
material evidence on the issues she raises in this appeal. (See Nwosu, supra,
122 Cal.App.4th at p. 1247; rule 8.204(a)(2)(C).)18 As such, Susan on appeal
forfeits any claim of error based on the alleged lack of substantial evidence it
was in minors’ best interest for their parents to share legal custody.
Also evident from Susan’s opening brief is her attempt to reargue the
evidence in this case and, in so doing, to ask this court to reweigh the
credibility of witnesses and to make new findings based on the conflicting
record “evidence.”19 This we cannot do. In a substantial evidence challenge
to the findings of the trier of fact, such as made by Susan in the instant case,
18 As noted, this is just one example of Susan’s failure in her brief to
summarize all the material evidence on a point, whether favorable or
unfavorable to her position. (See Schmidlin, supra, 157 Cal.App.4th at p.
738.) Another similar example derives from attorney Milligan’s September
16 supplemental statement. Susan described the substance of this statement
as presenting selected excerpts from “confidential conjoint therapy sessions”
attended by minor’s counsel on June 24 and August 2. What Susan does not
acknowledge, however, is that minors had consented to allow attorney
Milligan to disclose the “substance” of what was said during the therapy
sessions; that minors had “beg[ged]” their mother not to call CWS and/or
police in connection with the clothing store incident involving their father;
that minors reiterated feeling safe when they were with their father in his
home; that minors together wanted to spend time with their father; that
minors were “exhausted” talking with their mother about their father, the
legal process, and their mood swings, and just wanted to be normal
teenagers; and so on. (See ibid.)
19 We note a great deal of the “evidence” Susan relies on in her opening
brief is derived from the exhibits she lodged in connection with her requests
for restraining order and/or her requests for sole legal custody of minors.
However, as we have noted ante, with very limited exceptions the lodged
exhibits are not included in the record on appeal, and thus cannot be used as
evidentiary support for her claim of error.
26
we may not reweigh the evidence, are bound by the credibility determinations
of the trier of fact, and must liberally construe findings of fact to support the
judgment or order. (See In re Marriage of Ciprari (2019) 32 Cal.App.5th 83,
93–94.)
Because we have found ample evidence in the record to support the
court’s tacit finding that the best interest of minors was for their parents to
have joint legal custody, we reject Susan’s claim the court abused its
discretion in denying her motions for a change in custody.
C. Minor’s Counsel
Sections 3150 through 3153, and rules 5.240 through 5.242,20 govern
the appointment of independent counsel for a minor in a custody proceeding.
“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, provided that the court and
counsel comply with the requirements set forth in [the applicable] Rules of
Court.” (§ 3150, subd. (a).)
A minor’s counsel has a legal and ethical obligation to represent the
minor’s best interests and is charged with making “ ‘a reasonable,
independent determination of the minor’s best interests.’ ” (In re Alexandria
P. (2016) 1 Cal.App.5th 331, 358 (Alexandria).) Section 3151, subdivision (a)
outlines the role and duties of a minor’s independent counsel. They include
gathering “evidence that bears on the best interests of the child, and
present[ing] that admissible evidence to the court in any manner appropriate
20 “[R]ule 5.240 . . . sets forth specific factors the court should take into
account in determining whether to appoint minor’s counsel. . . . Rule 5.241
addresses the proper payment of the minor's counsel, and . . . [r]ule 5.242
addresses the qualifications, rights and responsibilities of the minor’s
counsel.” (In re Marriage of Metzger (2014) 224 Cal.App.4th 1441, 1446.)
27
for the counsel of a party” (§ 3151, subd. (a)); and “interviewing the child,
reviewing the court files and all accessible relevant records available to both
parties, and making any further investigations as the counsel considers
necessary to ascertain evidence relevant to the custody or visitation
hearings.” (Ibid.)
Subdivision (c) of section 3151 sets forth the rights of minor’s counsel.
As relevant here, they include: “(2) Standing to seek affirmative relief on
behalf of the child”; “(4) The right to take any action that is available to a
party to the proceeding, including, but not limited to, the following: filing
pleadings, making evidentiary objections, and presenting evidence and being
heard in the proceeding, which may include, but shall not be limited to,
presenting motions and orders to show cause, and participating in settlement
conferences, trials, seeking writs, appeals, and arbitrations. (5) Access to the
child’s medical, dental, mental health, and other health care records, school
and educational records, and the right to interview school personnel,
caretakers, health care providers, mental health professionals, and others
who have assessed the child or provided care to the child. The release of this
information to counsel shall not constitute a waiver of the confidentiality of
the reports, files, and any disclosed communications”; “(7) The right to assert
or waive any privilege on behalf of the child. (8) The right to seek
independent psychological or physical examination or evaluation of the child
for purposes of the pending proceeding, upon approval by the court.”
Susan wisely does not claim the court abused its discretion in
appointing minor’s counsel in the first instance. Several factors favored such
appointment in this case, including among others that “child custody and
visitation are highly contested or protracted” (rule 5.240(a)(1)); a child is
“subjected to stress as a result of the dispute that might be alleviated by the
28
intervention of counsel representing” him or her (id., (a)(2)); minor’s counsel
“would be likely to provide the court with relevant information not otherwise
readily available or likely to be presented” (id., (a)(3)); and the dispute
“involves allegations of physical, emotional, or sexual abuse” (id., (a)(4)).
Susan also does not claim attorney Milligan was unqualified for the
appointment.
Instead, she claims the court erred by considering attorney Milligan’s
July 29 statement and her supplemental September 16 statement because
they relied on hearsay.
First, we note that Susan only objected on hearsay grounds to a single
paragraph in the July 29 statement describing attorney Milligan’s
conversation with B.C.’s school counselor, in which the counselor stated B.C.
had difficulty remembering things the same as other students at her grade
level. The record is silent whether the court sustained this single hearsay
objection.
In any event, a single objection to one paragraph in the July 29
statement, or a few sentences within that paragraph, does not preserve on
appeal the issue of whether both statements are inadmissible on hearsay
grounds. (See Evid. Code, § 353 [providing a “verdict or finding shall not be
set aside, nor shall the judgment or decision based thereon be reversed, by
reason of the erroneous admission of evidence unless: [¶] (a) There appears of
record an objection to or a motion to exclude or to strike the evidence that
was timely made and so stated as to make clear the specific ground of the
objection or motion”]; see also Orozco v. WPV San Jose, LLC (2019) 36
Cal.App.5th 375, 397 [noting it “ ‘is hornbook law that a timely and specific
objection is required to prevent the consideration of certain evidence’ ”].)
29
Therefore, we conclude this claim of alleged error is forfeited on appeal,
at least with respect to the portions of the two statements Susan did not
object to on hearsay grounds. (See In re S.B. (2004) 32 Cal.4th 1287, 1293
(S.B.) [noting a “reviewing court ordinarily will not consider a challenge to a
ruling if an objection could have been but was not made in the trial court,”
and further noting the “purpose of this rule is to encourage parties to bring
errors to the attention of the trial court, so that they may be corrected”].)
Second, both of attorney Milligan’s reports are based on interviews she
personally conducted, including with minors. Any information attorney
Milligan obtained from minors was confidential, subject to the attorney-client
privilege (see Evid. Code, § 95221), as minor’s counsel herself noted in her
July 29 statement when she was careful not to waive the privilege but
instead merely described the overall “sentiment” of her interviews with
minors and their mental health professionals. (See § 3151, subd. (c)(7)
[recognizing the right of minor’s counsel to assert or waive any privilege on
behalf of his or her client].) In our view, attorney Milligan properly used this
21 Evidence Code section 952 provides: “As used in this article,
‘confidential communication between client and lawyer’ means information
transmitted between a client and his or her lawyer in the course of that
relationship and in confidence by a means which, so far as the client is aware,
discloses the information to no third persons other than those who are
present to further the interest of the client in the consultation or those to
whom disclosure is reasonably necessary for the transmission of the
information or the accomplishment of the purpose for which the lawyer is
consulted, and includes a legal opinion formed and the advice given by the
lawyer in the course of that relationship.”
30
privileged information in her role as minors’ independent counsel in
addressing their best interest when it came to custody and visitation.22
Third, attorney Milligan had a legal and ethical obligation to make an
“ ‘independent determination’ ” regarding minors’ best interest. (See
Alexandria, supra, 1 Cal.App.5th at p. 358.) In order to do so, attorney
Milligan had a statutory duty to gather evidence that “bears on the best
interests of the child.” (§ 3151, subd. (a).) Such information-gathering
included interviewing minors, the parties, school personnel, and mental
health care professionals among others (id., subds (a) & (c)(5)); and
“reviewing the court files and all accessible relevant records available to both
parties, and making any further investigations as the counsel considers
necessary to ascertain evidence relevant to the custody or visitation
hearings.” (Id., subd. (a).)
We conclude in the instant case that attorney Milligan’s was merely
fulfilling her legal and ethical obligation to independently represent the best
interest of minors when she prepared the two statements. The two
statements summarized for the court the substance of Milligan’s statutorily
required investigative efforts; expressed the “sentiment” of minors based on
minor’s counsel’s interviews with them and their mental health professionals;
22 We reach the same conclusion with respect to the confidential
information attorney Milligan received from CWS, which information she
also properly relied on in representing minors’ interests in the custody and
visitation dispute between the parties. (See cover letters from CWS attached
as exhibits A & B to attorney Milligan’s July 29 statement, which letters in
part state: “[A] juvenile case file, any portion thereof, and information
relating to the content of the juvenile case file, may not be made as an
attachment to any other documents without the prior approval of the
presiding judge of the juvenile court, unless it is used in connection with and
in the course of a criminal investigation or a proceeding brought to declare a
person a dependent child or ward of the juvenile court.”
31
stopped short of making a recommendation regarding who should have
custody of minors, while emphasizing minors wanted to have visitation with
their father “as siblings”; and viewed the importance of minors having a
relationship with their father, and of their mother’s unwillingness or inability
to appreciate the importance of minors having a relationship with both
parents.
Attorney Milligan’s statements properly reflect her role as an advocate
for minors, in contrast to a report by a child custody evaluator. (See rule
5.220(h)(1) [noting a child custody evaluator among other things must
“[m]aintain objectivity, provide and gather balanced information for both
parties, and control for bias”]; see also § 3111, subd. (a) [providing in part
that a court “may appoint a child custody evaluator to conduct a child custody
evaluation in cases where the court determines it is in the best interest of
the child”].)
Fourth, even if the court erred in admitting either or both statements,
and in relying on what Susan claims are inappropriate recommendations
made by minor’s counsel—a point on which we disagree, as noted, the record
shows there was ample other evidence available to the court in deciding the
best interest of minors as it pertains to custody and visitation. (See Jameson
v. Desta (2018) 5 Cal.5th 594, 608–609 [noting that in the “absence of a
contrary showing in the record, all presumptions in favor of the trial court’s
action will be made by the appellate court”].)
Most important, this other evidence included the March 12, 2019 FCS
report recommending the parents have joint custody over minors (assuming
Susan’s then-allegation of domestic violence was unsubstantiated, as turned
out to be the case); and the court’s August 26 in camera interview of minors,
32
which took place less than a month before it ruled on, and ultimately denied
after a lengthy hearing, Susan’s renewed request for full legal custody.
In addition, the court itself was acutely aware of the circumstances of
this case, as it had designated as early as December 2018 the parties’ custody
and visitation dispute as “high-conflict” when it appointed attorney Milligan
to represent minors. In making this appointment, the court found minors
were caught in the middle of the conflict and expressed concern that Susan
was using the “DVTRO process” as “leverage for C/V orders,” as we have
noted. All of this information was available to the court when it denied at the
September 20 hearing Susan’s request to assume sole legal custody of minors.
Thus, even if it was error to admit and rely on attorney Milligan’s July
29 and September 16 statements, including any alleged recommendations
therein, we conclude that error was harmless because it was not reasonably
probable the exclusion of the statements would have resulted in a more
favorable outcome for Susan. (See McCoy v. Board of Retirement (1986) 183
Cal.App.3d 1044, 1054 [noting error in admission of evidence “ ‘is not
prejudicial if the evidence “was merely cumulative or corroborative of other
evidence properly in the record,” ’ or if the evidence ‘was not necessary, the
judgment [or order] being supported by other evidence’ [citations omitted]”;
see also People v. Watson (1956) 46 Cal.2d 818, 836 [recognizing that a
“ ‘miscarriage of justice’ should be declared only when the court, ‘after an
examination of the entire cause, including the evidence,’ is of the ‘opinion’
that it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error”].)
Susan also claims that attorney Milligan should be dismissed because
she allegedly failed to present the minors’ wishes regarding custody and
visitation to the court. We disagree.
33
We note attorney Milligan’s statements covered minors feelings about
wanting to have a relationship with their father and them feeling safe when
in his home. That Susan disagreed with minor’s counsel statements is plain,
but does not mean, ipso facto, that minors’ wishes were not respected by their
appointed attorney.
Indeed, attorney Milligan noted the lack of “congruent” information she
was receiving from minors and what Susan was saying minors felt and
wanted as it concerned their father. In any event, as we have also noted the
court heard first-hand from minors during the August 26 in camera
interview. Thus, because the court was certainly apprised of minors’ wishes
when it ruled to deny Susan’s request for sole legal custody, we find this
claim of error unavailing.
Finally, Susan claims her multiple requests to dismiss attorney
Milligan as minor’s counsel created a conflict of interest that required the
court to remove her from the case. Again we disagree. Attorney Milligan
represents the interests of minors, not those of Susan. Merely because Susan
filed such motions, and/or argued that attorney Milligan was biased and
accused her of other alleged improper conduct, did not create a conflict of
interest between minor’s counsel and minors. In any event, the court clearly
found attorney Milligan was fulfilling her obligation to competently represent
minors’ interest in connection with custody and visitation. We thus also find
this claim of error unavailing.
34
DISPOSITION
The court order denying both Susan’s motion for sole legal custody of
minors and her motion to dismiss attorney Milligan as minor’s counsel is
affirmed. The parties are to bear their own costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
35