In re Jacob S.

Filed 6/19/07In re Jacob S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Stanley Genser, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Reversed.

Akin Gump Strauss Hauer & Feld, Rex S. Heinke and Seth M. M. Stodder for Appellant.

Raymond G. Fortner, Jr., Los Angeles County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Respondent Department of Children and Family Services.

Merrill Lee Toole, under appointment by the Court of Appeal, for Respondents Jacob S., Isaiah S. and Elijah S.

introduction

This is one of eight appeals currently pending by the Childrens Law Center of Los Angeles (the Center or CLC), all from orders of the juvenile court disqualifying the Center from representing children in dependency proceedings because of purported conflicts of interest. (See In re Charlisse C. (2007) 149 Cal.App.4th 1554 (Charlisse); In re Jasmine S. (June 19, 2007, B194714) ___ Cal.App.4th ___ (Jasmine)). We reverse the disqualification order.

BACKGROUND

Our prior opinions set forth the relevant facts relating to the Center and the evidence upon which the juvenile court based its decision that the Center violated the ethical safeguards set forth in Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1435-1445, and People v. Christian (1996) 41 Cal.App.4th 986, 991-1002. (See Charlisse, supra, 149 Cal.App.4th at pp. 1560-1564] (lead opn. of Mosk, J.) and pp. 1583-1599 (dis. opn. of Turner, P.J.); Jasmine, supra, __ Cal.App.4th __ [pp. 3-8].)^[1] We set forth the facts only insofar as they relate to the disqualification order in this case.

These proceedings commenced on February 8, 2000, when the Los Angeles County Department of Children and Family Services filed a petition under Welfare and Institutions Code section 300^[2]with respect to one-year old Jacob S. and his brother, three-month old Isaiah S., alleging that Isaiah had been hospitalized suffering from injuries consistent with shaken-baby syndrome. At the detention hearing on February 9, 2000, the juvenile court appointed Archana Gupta of CLC Unit 2^[3]to represent both children.

On March 14, 2000, DCFS filed a First Amended Petition, adding allegations that the childrens mother had a history of emotional problems and that the childrens parents had a history of domestic violence. The allegations in the petition were settled on August 24, 2000, with both parents pleading no contest to the petition, amended as agreed among the parties. The court ordered reunification services for both parents.

In February 2001, DCFS reported that the parents had given birth to a third child, Elijah S., in October 2000. Elijah remained in his parents custody because, at the time, they were complying with their case plan.

In August 2001, DCFS reported that the parents had entered into and were in compliance with a voluntary contract with DCFS with respect to Elijah. The parents had not, however, completed the counseling required by their case plan with respect to Jacob and Isaiah, and had been unable to obtain adequate housing for the two older children. DCFS therefore recommended that Jacob and Isaiah be placed in long-term foster care. The juvenile court adopted the recommendation and ordered DCFS to provide permanent placement services.

On May 15, 2002, DCFS filed an ex parte application for a change of order pursuant to section 385, requesting that the court change its visitation order to permit the parents only monitored visits with Jacob and Isaiah. DCFS alleged that the parents had a domestic violence incident while Jacob and Isaiah were present, in which the parents yelled at one another and the mother threw a knife at the father. DCFS also filed a section 300 petition with respect to Elijah, recommending that no reunification services be provided to the parents. The juvenile court heard the ex parte application and held the detention hearing with respect to Elijah on May 17. The juvenile court appointed Guptathe CLC Unit 2 attorney already representing Jacob and Isaiahto represent Elijah. The juvenile court granted the section 385 application and required that parental visits be monitored, and ordered that Elijah be detained pending a hearing on May 20, at which time the juvenile court would permit the parties to reargue the detention issue.

At the May 20, 2002 hearing, Gupta declared a conflict of interests as to Elijah. She did not specify, nor did the juvenile court inquire, as to the nature of the conflict. The juvenile court appointed CLC Unit 1 attorney Elizabeth Calciano to represent Elijah.^[4]

On May 24, 2002, the juvenile court ordered that all three children be placed with their paternal grandmother. The section 300 petition with respect to Elijah was settled on June 12, with both parents pleading no contest to two counts in the petition. On January 27, 2003, the juvenile court terminated reunification services with respect to Elijah, finding that the parents were not in compliance with the case plan. The juvenile court set a section 366.26 hearing for all three children, indicating that legal guardianship with the childrens paternal grandmother was the identified plan. The childrens paternal grandmother was appointed the childrens legal guardian on April 28, 2003.

The juvenile court retained jurisdiction, and conducted periodic reviews between April 2003 and September 20, 2006 with no material changes in its orders. On December 1, 2005, CLC Unit 1 attorney Kevin Feldman replaced Calciano as Elijahs attorney.^[5]

On October 18, 2006a little more than three weeks after the juvenile court held its disqualification hearing in Charlisse, supra, 149 Cal.App.4th at p. 1564 (lead op. of Mosk, J.)the matter was on calendar for review of the childrens permanent plans. All of the parties submitted on the recommendation by DCFS that the existing plan was appropriate, and the juvenile court so ordered. Feldman, for reasons that are not reflected in the record, then advised the juvenile court for the record that I represent Elijah and Im from CLC 1 and Ms. Gupta represents Isaiah and Jacob from CLC 2. The juvenile court then stated, Ill need signed consents. Feldman purported to orally waive the conflict on behalf of Elijah, but Gupta did not feel comfortable waiving the conflict on behalf of Jacob and Isaiah. She indicated that she would discuss the issue with her supervisor. The juvenile court put the matter over to November 1 solely to determine whether or not counsel for Jacob and Isaiah will waive any conflict by representation of Elijah by Mr. Feldman. The juvenile court did not identify any particular conflict of interests between Elijah and his brothers.

On November 1, Feldman and Gupta appeared for their respective clients, and Marc Leftwich, the unit head of CLC Unit 2, appeared as co-counsel with Gupta for Jacob and Isaiah. Leftwich stated that CLC Unit 2 objected to being relieved, and requested that the juvenile court appoint a guardian ad litem for Jacob and Isaiah to determine whether or not a waiver is necessary or actually whether a waiver will be given. The juvenile court stated that it was not the courts job to seek the waiver. [] I do have a responsibility to make sure that whatever waivers are proffered, if the issue is raised, were knowing and intelligent waivers so in that regard there is some court involvement. Your objection is noted. [] And I am going to have to relieve you in light of my decision in Charlisse C. Feldman then added his objection that theres no . . . actual or structural conflict in this case. The juvenile court appointed panel attorney Lawren Cottles to represent Jacob and Isaiah. The juvenile courts minute order, however, indicates that the juvenile court relieved both CLC Units 1 and 2, and appointed Cottles to represent all three children. The Center timely appealed.

Discussion

A. Standard of Review.

Generally, a trial courts decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial courts express or implied findings supported by substantial evidence. [Citations.] When substantial evidence supports the trial courts factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial courts discretion is limited by the applicable legal principles. [Citation.] Thus, where there are no material disputed factual issues, the appellate court reviews the trial courts determination as a question of law. [Citation.] In any event, a disqualification motion involves concerns that justify careful review of the trial courts exercise of discretion. [Citation.] (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144; see also City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 848.)

B. The Juvenile Court Abused Its Discretion in Disqualifying the Center

The juvenile court expressly stated, I am going to have to relieve you in light of my decision in Charlisse C. We have held, however, that the juvenile courts decision in Charlisse, supra, 149 Cal.App.4th 1554 was erroneous: the Center has not meaningfully departed from the practices approved in Castro and operated as one law firm. (Id. at p. 1580 (conc. opn. of Armstrong, J.); Jasmine, supra, __ Cal.App.4th __ [pp. 10-12, 14].). No additional evidence relating to any alleged breaches of the Centers ethical walls was presented by the parties or received by the juvenile court in this case. Furthermore, there is no evidence that any alleged breach in the Centers ethical screens related to the parties in this case. (Charlisse, supra, 149 Cal.App.4th at pp. 1574-1578 (lead opn. of Mosk, J.); Jasmine, supra, __ Cal.App.4th __ [pp. 14-15].) The juvenile court therefore erred by disqualifying the Center on the basis of a so-called structural or systemic conflict.

The record in this case does not support a findingimplied or expressof an actual conflict of interest between or among any of the children. (See Cal. Rules of Court, rule 5.660(c)(2)(E);^[6]In re Celine R. (2003) 31 Cal.4th 45, 58; Jasmine, supra, __ Cal.App.4th __ [pp. 10-13].) In this case, all three children had been placed with their grandmother, who had been appointed their legal guardian more than three years before the disqualification order. In fact, by November 1, 2006, there were no disputed issues in the case whatsoever, and there had not been any disputed issues for more than two years. Indeed, it is significant that, after the juvenile court disqualified the Center, it appointed a single lawyer to represent all three siblings. This is a tacit recognition that the circumstances of this case presented neither a present, actual conflict of interest within the meaning of Rules of Court, rule 5.660(c)(2)(E), nor a reasonable likelihood that an actual conflict of interest will arise among the siblings, within the meaning of Rules of Court, rule 5.660(c)(1)(B)(ii).

Appellate counsel for the children asserts that, when DCFS filed the section 300 petition with respect to Elijah in May 2002, [a]ppointment of separate counsel for Elijah was . . . mandatory . . . [because] advocacy on behalf of Jacob and Isaiah might have had adverse consequences for Elijah. This argument is irrelevant. Separate counsel was appointed for Elijah, in the person of Elizabeth Calciano from CLC Unit 1. In any event, counsel cites no authority and makes no argument that a potential conflict of interest in 2002, which was resolved no later than April 2003 (when the childrens grandmother was appointed their legal guardian), justifies disqualification of conflict-free counsel in November 2006. The fact that appellate counsel accepted representation of all three minors indicates her view that there is no actual, present conflict of interest between or among the children. (See In re Mary C. (1995) 41 Cal.App.4th 71, 80-81 [no actual conflict requiring appointment of separate counsel on appeal when minor expressed no preference concerning placement, appellate counsels position was that expressed by the minors separate attorney in the trial court, and appellate counsel unequivocally indicated there is no conflict of interest].)

Finally, in addition to no evidence of an actual conflict between the children, the record contains no evidence that either Feldman (Elijahs CLC Unit 1 attorney) or Gupta (the CLC Unit 2 attorney for Jacob and Isaiah) had a personal disqualifying conflict (see Cal. Rules Prof. Resp., rules 3-300, 3-310(B)), or that the independent professional judgment of either had been compromised (see Cal. Rules Prof. Resp., rule 3-310(F)). (See Jasmine, supra, __ Cal.App.4th __ [p. 14 & fn. 10].) The juvenile court therefore erred by disqualifying the Center.

Disposition

The trial courts order of disqualification is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

I concur:

ARMSTRONG, J.

In re Jacob S., B194861

I concur in the judgment. There is no evidence of an actual conflict of interest. Thus, the juvenile court did not have discretion to relieve the Childrens Law Center of Los Angeles. (Welf. & Inst. Code, 317; In re Celine R. (2003) 31 Cal.4th 45, 58; Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1428-1430.)

TURNER, P. J.

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^[1] The Center has requested that we take judicial notice of the records on appeal in Charlisse, supra, 149 Cal.App.4th 1554 and Jasmine, supra, __ Cal.App.4th __. We grant the Centers request. (Evid. Code, 452, subd. (d), 459.)

^[2] All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

^[3] At the time of Guptas appointment, CLC Unit 2 was known as DCLS-2. (See Charlisse, supra, 149 Cal.App.4th at pp. 1560-1561 (lead opn. of Mosk, J.).) Gupta remained counsel of record for Jacob and Isaiah until relieved by the juvenile court on November 1, 2006, at which time she was employed by CLC Unit 2.

^[4] The juvenile court appointed Calciano on the record during the May 20 hearing. Her appointment is not reflected in the May 20 minute order, however. Calcianos appointment is reflected in the juvenile courts minute order of May 24.

^[5] The juvenile courts minute order dated September 20, 2006 states that CLC Unit 2 attorney Jennifer Lorson appeared in Feldmans place representing Elijah. This appears to be incorrect. The transcript of the hearing indicates that Feldman was present, and that Lorson was substituting for CLC Unit 2 attorney Gupta.

^[6]Former rule 1438, in effect at the time of the disqualification order in this case, was renumbered rule 5.660 effective January 1, 2007.