In re H.R.
Filed 1/24/14 In re H.R.
CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re H.R. et
al., Persons Coming Under the Juvenile Court Law.
B245934
(Los
Angeles County
Super. Ct. No. CK94113)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.M.,
Defendant and Appellant.
APPEAL
from an order of the
D. Downing, Judge. Dismissed.
Tyna Thall Orren, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County
Counsel, and William D. Thetford, Principal Deputy County Counsel, for
Plaintiff and Respondent Department Of Children and Family Services.
Karen B.
Stalter, under appointment by the
A
mother challenges the removal of her children from her custody and an order for
supervised visitation. She argues the
independent counsel for the children once a conflict arose as to the attorney
jointly representing the children who made intermittently conflicting factual
statements and expressed differing wishes.
Mother also argues that the attorney
ineffectively represented one of the children by focusing on one child and
ignoring another’s views. We will
dismiss the appeal. Many of the issues
mother raises are now moot; the remainder have been forfeited by virtue of her
failure to raise them in the trial court.
PROCEDURAL AND FACTUAL
BACKGROUND
This family came
to the attention of respondent Department of Children and
early June 2012, after DCFS received a referral alleging that Jose P. (Jose)
and J.M. (mother) engaged in violent physical altercations in the presence of
the respondent children, H.R., A.R. and K.P., (then ages 10 years, 4 years and
17 months, respectively).
name="_ftnref1" title="">[1] The referral also alleged alcohol abuse by
Jose, and that he physically abused A.R. and K.P. Neighbors had seen Jose in the home breaking
and throwing objects, said Jose regularly drank on weekends and hit mother
while under the influence. They had seen
mother crying several times and observed bruises on her arms. The incident that prompted the DCFS referral
occurred on June
7, 2012,
after Jose came home and began hitting the windows trying to get inside the
house. He finally entered through a
window, after which he hit mother and took K.P. and left. Mother came out of the house crying, saying
Jose had run off with the baby.
Thereafter, a
DCFS social worker (Miller), met with mother, Jose and each of the two girls
(K.P was too young to be interviewed).
Mother and Jose each denied that any domestic violence had occurred
between them, that Jose had abducted K.P., that Jose had a drinking problem or
that there was any abuse or neglect in their home. Mother claimed the neighbors had confused her
with another relative who lived in the same apartment complex where domestic
violence occurred. When four-year-old
A.R. was asked about the June 7 incident, she told Miller, “don’t say anything.†Asked what it was that she not supposed to
talk about, A.R. simply repeated the statement.
A.R. said mother had told her the social worker was coming over to speak
to her, but denied that mother told A.R. not to say “anything.†A.R. denied any abuse or neglect.
Miller
interviewed H.R. at school. H.R. told
the social worker that when Jose came home the night before, mother blocked the
door with a couch to keep him out. Jose
broke in through a window screen. H.R.
had been in her room. She heard Jose hit
mother. K.P. was with mother and Jose at
the time of the incident; mother was crying “a lot.†H.R. said Jose was drunk, as he often was,
and that he got “crazy†when he was drunk.
She saw him throw his clothes out the window, grab mother by the hair
and take K.P. and run down the street. H.R.
had seen one other incident of domestic violence during which Jose pulled
mother’s hair and slapped her face. Jose
once grabbed H.R. by the shirt. H.R. had
seen Jose hit A.R. and K.P. on the buttocks with a sandal. H.R. was not allowed to see her father,
Jimmy, because of a restraining order.
The same social
worker re-interviewed H.R. at home later the same day. As soon as Miller entered the room. H.R.
said, “I think I told you the wrong thing because I thought at school that you
were talking about my dad, not [K.P.’s] dad because my dad used to hit my mom a
lot but I got confused. Nothing happened
last night.†After Miller reminded H.R.
that she had been very specific about whom she had spoken, and that they had
talked about both Jose and her biological father, H.R. began to cry and
whispered, “‘I’m scared. My friend got
taken away and she does not get to see her mother.’†Miller told H.R. she needed to be
truthful. She asked H.R. if she had told
the truth at school and H.R. nodded, “yes.â€
H.R. denied that mother told her to lie.
A few days
later, at a team decision making meeting, H.R. reconfirmed her initial
statements. In mid-July, she changed her
story again and told a second social worker (Maldonado) she had lied when she
told Miller that Jose hit mother because she was mad that Jose refused to buy
her some shoes she wanted, had been confused and that first social worker
pressured and tried to bribe her. H.R.
also said she had lied to Miller when she said Jose struck A.R. and K.P. with a
sandal. H.R. said she was sad and that
all three children wanted to return to mother’s care. She denied being afraid either of Jose or
Jimmy. H.R. then began to cry
hysterically, and refused to say more.
Maldonado
also re-interviewed A.R. The child told
her that Jose was not coming because he was in jail, then said, “‘He did
nothing . . . . He not fighting[,]’†and
had not hit mother. When asked why she
thought her sister had said that Jose had hit mother, A.R. said, “‘She’s weird
. . . she’s dumb cuz they don’t fight.’â€
A.R. was asked if mother told her to deny the domestic violence
allegations. She smiled and said, “‘No,’â€
then, suddenly said, “‘My mom said don’t tell that [Jose] fight . . . .’†A.R. then tightly placed her hands over her
mouth and said, “‘He no hit her!’†and began to laugh, covered her ears and
looked away, smiling. A.R. shook her
head when asked if she had ever seen Jose hit, push or slap mother.
On June 26, DCFS
filed a petition pursuant to Welfare and Institutions Code section 300.
petition alleged that on June 7, and other occasions, Mother and Jose engaged
in violent altercations in the children’s presence, and mother failed to
protect the children (count b-1; § 300, subd. (b)); Jose physically abused A.R.
and K.P. (counts a-2 and b-2; § 300, subds. (a), (b)); and Jose had a history
of substance abuse, was a current abuser of alcohol, and mother failed to
protect the children (count b-3; § 300, subd. (b)).
At the detention
hearing, held on June 26, the juvenile court found that Jose was the presumed
father of K.P. and Jimmy was the presumed father of H.R. and A.R. Attorney Josephanie Ackman was appointed to
represent all three children. Jimmy, who
appeared at the hearing, was non-offending under the petition, but there was a
restraining order against him that was in effect until 2015. Counsel was appointed for mother and
Jimmy. Jose, then in custody, did not
appear. The children were ordered
detained and placed in the care of a paternal aunt.
On July 25 the
matter was continued for mediation and set for adjudication. Mother continued to deny the allegations of
domestic violence and physical or alcohol abuse in the home. Information submitted for the jurisdictional
hearing by DCFS included details from a 2009 police report regarding an
incident of domestic violence between Jose and a former girlfriend in which
Jose had allegedly threatened to kill the girlfriend. Jose denied the allegation, or that he had
been the aggressor. DCFS reported that
it had information from a “reliable source,†who wished to remain anonymous,
that H.R. had disclosed that Jose had engaged in domestic violence and physical
abuse, and that mother had screamed at and scolded H.R. during visits, blaming
her for initial statements to DCFS about domestic violence.
A DCFS report
for an August 30 mediation hearing contained an interview with Jimmy, who said
he had not seen his daughters for five years.
H.R. told Jimmy that Jose hit her and A.R. Mother denied the allegation when Jimmy asked
her about it. When A.R. was one or two
years old, Jimmy had seen a mark on her leg that looked as though it had been
caused by a cable. When Jimmy asked
mother about it, she told him it was none of his business. H.R. had often told Jimmy that Jose hit
A.R. Jimmy told Jose not to touch his
daughters. Jose had been “very drunkâ€
many times when Jimmy went to pick his daughters up for weekend visits. Jimmy said the girls wanted to live with
him. DCFS did not believe such a
placement was appropriate given the restraining order. DCFS did recommend unmonitored visits for
Jimmy, contingent upon his enrollment in a year-long domestic violence program.
Jose was
deported to Mexico after his incarceration. He
planned to return but, because of finances, did not know when he could.
DCFS recommended
that the children not be placed with mother.
Mother had scolded H.R. during visits for disclosing the domestic
violence and physical abuse by Jose.
DCFS opined that, by engaging in such conduct, mother showed a lack of
insight into the negative effects emotional and physical abuse has on
children. DCFS was also concerned she
might reunite with Jose if he returned from Mexico.
When the
adjudication began on September 12, Ackman requested that mother’s visits with
the children take place in a therapeutic setting. Ackman informed the court that, according to
her investigator, “The children are very afraid of, what they call, their ugly
nasty mom. [H.R.] has very low
self-esteem image. She does not want to
go home to her mother. She wants to be
with her father.†Ackman said the
investigator asked that visitation be stopped altogether. Mother’s counsel objected to the request and
said the visits had gone well. The court
ordered that visitation occur at DCFS’s offices to permit a social worker to
assess the quality of mother’s visits, and continued the hearing to October
5. Mother’s counsel requested that A.R.
be present for the next hearing, but the court noted that she was very
young. The court did not order any of
the children into court, but placed them on call. The court ordered a supplemental report with
interviews with the children regarding visitation.
H.R. and A.R.
were interviewed again by Maldonado on September 26. H.R. told the social worker she had lied to
her before at mother’s direction, “‘But now, I’m going to tell the truth
because I know my mom can’t hit me anymore.’â€
H.R. said that Jose had hit her, A.R. and mother, and that mother had
told both her and A.R. to lie to DCFS and say that Jose does not hit her
because she could go to jail. H.R. also
said that mother had told her to lie about being hit by Jimmy, and that mother
would hit her if she refused to do so.
Jimmy had been nice to the whole family, but Jose hit the children and
hit A.R. and K.P. with a belt and a sandal.
H.R. wanted to live with Jimmy.
She did not want to live with mother because she knew that mother was
gathering money to help bring Jose back to the United States, and if she lived with mother, Jose would hit the children.
A.R. refused to
meet with Maldonado alone, and insisted that H.R. be present. A.R. began by saying she enjoyed visiting
mother, but that H.R. did not and she did not know why. A.R. said mother did not scream at the
children during visits. After being
prompted by H.R. to “‘tell the truth now . . . mom is not going to hit you if
you tell the truth now . . . .’†A.R.
“suddenly burst out quickly,†saying Jose had hit her many times with a sandal
and a belt, and had also hit her brother and sister with a belt. A.R. said, “‘I don’t know if he hit my mom; I
didn’t see[,] so I don’t know, ok?’â€
A.R. then looked at H.R. who again prompted her to “‘tell the truth.’†A.R. then “blurted out†that Jose had slapped
mother once, and that they fought all the time.
When A.R. said she had not actually seen Jose hit mother the day he came
in through a window, H.R. interrupted, saying, “‘[h]e slammed my mom and we
both saw it.’†A.R. denied that mother
told her to lie, while looking at H.R. and gesturing for H.R. to remain quiet
by putting her finger to her lips. She
said she wanted to live with Jimmy and also with mother. She thought Jimmy had hit mother but had
never seen him do it.
In connection
with the October 9 adjudication, DCFS reported that mother had been attending
court-ordered parenting classes, individual counseling and a program for
victims of domestic violence. Mother had
participated in sessions and been cooperative.
However, mother’s manipulative behavior during visits (as disclosed by
H.R.) and, according to the instructor in her parenting course, her failure to
“‘accept[] responsibility for her abusive behavior,’†showed she had not
absorbed much from the courses or counseling.
The social worker recommended that the children remain suitably
placed. Also, given H.R.’s denial that
Jimmy had engaged in domestic violence, DCFS was in the process of assessing
him for possible placement.
At the hearing,
the court admitted into evidence DCFS’s reports and addenda. No witnesses were called to testify. During closing arguments, Ackman stated, “My
clients, through my investigation and as echoed in the report of 10/5, are
manipulated by their mother, which was the cause for the recantation. . . . They
are afraid of their mother. They would
not be in agreement to go home with their mother at this time. They’ve been told that if they tell on their
mom, their mom will go to jail . . . .â€
Ackman requested that the children remain suitably placed.
At
the conclusion of the hearing, the court found mother and Jose had “been less
than candid . . .†and clearly “were not credible,†and sustained the
petition. Proceeding to disposition, the
court found that mother had intimidated the children and told them to lie. For that reason, and because of H.R.’s
concern that Jose would return to the family’s home after his deportation, the
court removed the children from the physical custody of mother and Jose. Reunification services were ordered for all parents. Mother was given monitored visits, and Jimmy
was given unmonitored visits once the restraining order was modified. Mother filed this timely appeal.
DCFS
subsequently filed a motion to take additional evidence
motion to dismiss the appeal.
DISCUSSION
Mother
challenges the juvenile court’s jurisdictional findings and dispositional order
removing the children from her custody and restricting her to monitored
visitation. Mother does not argue that
the findings or order are not supported by substantial evidence. Rather, she argues they should be reversed
because the children’s trial counsel had a conflict of interest in representing
all the children when H.R. and A.R. gave differing statements and took
different positions on material matters.
She also maintains that Ackman’s representation of A.R. was ineffective
because Ackman did not “independently represent her interests.â€
DCFS
has moved to dismiss mother’s appeal on the grounds that (1) she lacks standing
to raise issues regarding Ackman’s representation of all three children, (2) the
appeal is moot, given that K.P. has been returned to mother’s custody, A.R. is
in the shared custody of mother and Jimmy, and H.R. has unmonitored visits with
mother, and (3) mother forfeited the issues by not raising them in the juvenile
court and by failing to file a petition for writ of habeas corpus.
1. Mother
has standing to prosecute this appeal
DCFS asserts that mother lacks
standing to challenge the juvenile court orders as to A.R. because her
interests and those of A.R. were not sufficiently interwoven such that A.R.’s
lack of independent counsel affected mother’s interests. DCFS is mistaken.
Relying
on In re S.A. (2010) 182 Cal.App.4th
1128, DCFS contends that mother lacks standing because A.R.’s right to
competent counsel is personal to A.R., whose interests purportedly are not
interwoven with mother’s. (
involved a child sexually abused by appellant, a maternal relative, who sought
to admit evidence from the child’s therapist that the child had never claimed
that the appellant had abused her and that the therapist did not believe the
child was sexually abused. (
psychotherapist-patient privilege. (
On
appeal, appellant argued the child received ineffective assistance of counsel
because her attorney failed to interview the child’s therapist and, had he done
so, he would have learned that the therapist disbelieved the child’s accusation
of sexual abuse against appellant. (
raise the issue of the competence of the child’s counsel, and that his
interests and the child’s were not intertwined.
(Id. at p. 1134.) The appellant had relinquished his right to
reunification with the child and potential custody of her, and any harm to his
reputation (e.g., falsely being labeled a child molester) was insufficient to
confer standing. (Id. at pp. 1134–1135.)
An
issue that does not affect the parent’s own rights may not be raised on
appeal. (See In re Devin M. (197) 58 Cal.App.4th 1538, 1541.) Parents have a fundamental interest in the
companionship, care, custody, and management of their children. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 223.)
That interest manifests in reunification with the child or in
maintaining the parent-child relationship.
(In re Devin M., at p. 1541.) Children have both a compelling interest in
being a part of their natural family, and in being free from abuse and
neglect. (In re Dakota H., at p.
223.)
This
case is unlike In re S.A.,
interwoven interest: a mutual interest
in reunification. “At stake in a
dependency proceeding is both the child’s welfare and the parent-child
relationship. [Citation.] The two considerations are intertwined.†(In re
Patricia E. (1985) 174 Cal.App.3d 1, 6, disapproved on other grounds by
60; see also In re Noreen G. (2010)
181 Cal.App.4th 1359, 1377–1378.) Where
the parties’ interests are intertwined, either may litigate issues that impact
their related interests. (
independent counsel at any phase of the dependency proceeding, so long as the
issue litigated impacts the parent’s interest in the parent-child relationship. (Id.
at pp. 4–7.)
In
this case, H.R. and A.R. each demonstrated some reluctance to disclose domestic
violence and abuse, and a desire to be in mother’s custody at least part time,
as long as Jose was out of the home.
Early on, H.R. told the first social worker with whom she spoke that she
was afraid to speak about the physical abuse and domestic violence because her
friend had been “taken away†from her own mother. A.R. often told DCFS that she wanted to
return to mother’s custody or Jimmy’s, and that she liked visits with
mother. Thus, while the children had an
interest in being free from abuse or neglect, they also shared with mother an
interest in family reunification.
Mother’s interest in the parent-child relationship is also impacted by
the manner in which the children’s interests are represented especially where,
as here, H.R. and A.R. at times expressed conflicting desires and/or
contradictory accounts. Mother’s
interest in A.R.’s representation is interwoven with the child’s interest in
reunification. (In re Patricia E., supra,
174 Cal.App.3d at p. 6.) Mother’s
standing to appeal is clear.
2. Not all the issues raised on appeal are
moot
Based
on events occurring after the dispositional order, DCFS maintains that mother’s
appeal has become moot. This assertion
is partially correct.
On
appeal, mother contends, among other things, that the juvenile court erred when
it removed K.P. from her custody and when it restricted her to monitored
visitation with her children. Those
issues have been rendered moot. “An
appeal becomes moot when, through no fault of the respondent, the occurrence of
an event renders it impossible for the appellate court to grant the appellant
effective relief.†(In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) K.P. was returned to mother’s custody in
February 2013 and, since May 2013, mother has had unmonitored visitation with
all three children. No further relief is
available as to these matters. The issue
of whether A.R. should be returned to mother’s custody also has been rendered
moot; as of mid-June 2013, she has been in the shared custody of mother and
Jimmy. While H.R. has not been returned
to her custody, mother also does not argue that the dispositional order lacks
substantial evidence.
Still,
the appeal is not wholly moot. First,
mother argues that the juvenile court erred in failing to heed red flags raised
by the October 5 social worker’s report in which H.R. and A.R. expressed
conflicting desires about the material issue of their placement, and gave
contradictory accounts about mother’s conduct.
She insists that, at that point, further investigation was necessary
and, if the girls continued to express conflicting desires or contradictory
views, separate counsel should have been appointed for them.
Mother
argues that the juvenile court would not have made the jurisdictional findings
or dispositional order it made, but for Ackman’s conflicted and ineffective
representation. An issue will not be
deemed moot where “the purported error infects the outcome of the subsequent
proceedings.†(In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) Nor will an issue be “rendered moot by
subsequent events if the question to be decided is of continuing public
importance and is a question capable of repetition yet evading review.†(In re
Yvonne W., supra, 165 Cal.App.4th
at p. 1404.) The issue of conflicted or
effective representation of multiple siblings in a dependency proceeding by a
single attorney is a matter of ongoing public importance. (See Cal. Rules of Court, rule 5.660(c)(2)(B)(vi),
(vii).) For these reasons, the appeal is
not wholly moot.
3. Mother forfeited her challenge to the
children’s joint representation
“[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.†(In re
S.B. (2004) 32 Cal.4th 1287, 1293.) Dependency
cases are not exempt from the forfeiture rule.
(Ibid.; In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) The purpose of the rule is to encourage
parties to bring the error to the juvenile court’s attention so that it may be
corrected. (In re S.B., at p. 1293.)
“[A]pplication of the forfeiture rule is not automatic.†(Ibid.) But, in dependency cases, the discretion must
be exercised with special care. Because
these cases involve the well-being of children, in which considerations such as
permanency and stability of placement are of paramount importance, a reviewing
“court’s discretion to excuse forfeiture should be exercised rarely and only in
cases presenting an important legal issue.â€
(Ibid. [forfeited issue
involved interpretation of a statute and which had divided courts of appeal]; see
also In re M.R. (2005) 132
Cal.App.4th 269, 272 [forfeiture was excused in order to clarify recent
statutory amendment].) This is not the
rare case involving the type of legal issue that compels overlooking the
forfeiture.
Here
mother, who was represented by counsel in the trial proceedings, implicitly concedes
that her counsel raised no objection to the joint representation.
in the girls’ intermittently differing factual accounts, and expressed desires
for visitation or to return to mother’s custody were apparent from the
outset. Mother could have brought this
issue of a potential conflict of interest to the juvenile court’s attention,
but did not. She has not articulated any
legal justification to excuse her failure to raise these issues below. She may not raise for the first time on
appeal an issue she could have raised below.
“‘A party forfeits the right to claim error as grounds for reversal on
appeal when he or she fails to raise the objection in the trial court. [Citations.]
Forfeiture . . . applies in juvenile dependency litigation and is
intended to prevent a party from standing by silently until the conclusion of
the proceedings. [Citations.]’†(Kevin
R. v. Superior Court (2010) 191 Cal.App.4th 676, 686; see also
94, 98 [“The most obvious types of implied waiver arise from failure to object
to the ruling or proceedingâ€].) Mother’s
challenge to the order of joint representation and of ineffective assistance of
counsel has been forfeited.
4. Mother’s
failure to assert her claim of ineffectiveness of counsel by way of petition
for writ of habeas corpus prevents review
As a correlative to her objection to
joint representation, mother maintains that Ackman provided A.R. ineffective
counsel because she failed to meet with A.R. and communicated only H.R.’s views
to the juvenile court. She argues that
separate attorneys were necessary to determine what, from each girl’s
perspective, was true as to whether mother intimidated them into lying about or
recanting allegations of domestic violence or physical abuse in the home. “[T]he proper way to raise a claim of
ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] . . . [A]n ineffective
assistance claim may be reviewed on direct appeal [only] where ‘there simply
could be no satisfactory explanation’ for trial counsel’s action or
inaction. [Citation.]†(In re
Dennis H., supra,
Cal.App.4th 37, 53.) That is because,
“establishment of ineffective assistance of counsel most commonly requires a
presentation which goes beyond the record . . . .†(In re
Arturo A. (1992) 8 Cal.App.4th 229, 243.)
Evidence of the reasons for trial counsel’s tactics, as well as his or
her communications with the client, or lack thereof, are matters typically
outside the record which must be presented by declarations or other evidence
filed with a writ petition. Where, as
here, the parent fails to file a habeas petition, our review is limited to the
appellate record. (Ibid.) This record does not
establish that A.R. received ineffective assistance of counsel.
Mother argues
the record fails to show that Ackman met with A.R., interviewed her or considered
her wishes or opinions. She maintains
she did not have to raise her ineffective assistance of counsel claim by way of
a petition for writ of habeas corpus because “there can be no reasonable
explanation for ignoring [A.R.’s] views and interests.†But, the record contains no affirmative
evidence to prove that Ackman did not in fact meet with A.R., that she failed
to listen to her client, or that she ignored A.R.’s views and interests. Mother’s assertion that Ackman ignored A.R.
and provided her ineffective representation is nothing more than speculation
based on the way Ackman chose to present her clients’ case. First, the fact that Ackman said she spoke
with H.R. does not mean she did not also talk to A.R. simply because she used
referred to a singular “client†on September 12, 2012.
title="">[6] Further, Ackman informed the
court that recommendations made by her investigator were based on reports from
both H.R. and A.R.
It is also the
case that both girls intermittently admitted and denied abuse in this
action. Thus, it is incorrect for mother
to claim that Ackman “ignored†A.R.’s viewpoint. The juvenile court was aware of this
variance, as well as A.R.’s occasionally inconsistent wishes, factual
statements and opinions all of which are reflected in the DCFS reports it
read. Mother’s characterization of
A.R.’s statements to DCFS as reported in the October 5 report is incomplete. A.R. did, at one point say she wanted to live
with mother. But, prior to that, the
child described the domestic violence incident on June 7 during which she said
she was afraid. Further, mother ignores
the fact that, during the September 26 interview, A.R. engaged in behavior
indicating that statements she made that were favorable to mother may not have
been truthful; i.e., when she behaved oddly and gestured to H.R. to be
quiet. Further, at the outset of the
October 9 hearing, Ackman advised the juvenile court that the children denied
the petition’s allegations, but said she was required by section 317 to
advocate that the petition be sustained.
Absent
evidence to the contrary, we assume that Ackman properly performed her duties
under section 317, subdivision (e).
(Evid. Code, § 664; In re Barbara
R. (2006) 137 Ca1.App.4th 941, 954.)
As appellant, it is mother’s duty to affirmatively show error on the
record. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72.) There is no showing on this record that the
siblings’ attorney violated her duty or that the court should have found an
actual conflict existed. Absent such a factual
showing, there is no merit to mother’s claim that the children’s attorney was
ineffective.
5. Mother’s appeal would also fail on the
merits
Assuming
mother had not forfeited her appellate challenge, her arguments would fail on
the merits. Section 317, subdivision (c)
permits an attorney to represent a group of siblings who are the subject of a
dependency action. However, the
appointed attorney has “an ongoing duty to evaluate the interests of each
sibling to assess whether there is an actual conflict of interest.†(Cal. Rules of Court, rule 5.660(c)(2)(A).) A conflict of interest, as used in section
317, subdivision (c), means an actual—not a potential—conflict of interest. (In re
Celine R., supra,
appointment court must relieve attorney from multiple representation only if
actual conflict arises].) Separate
counsel are required when an actual conflict exists or there is a reasonable
likelihood an actual conflict will arise. (Id.
at p. 58.) The failure to comport with
this rule is subject to a harmless error analysis. (Id.
at p. 59.) An actual conflict exists
when the siblings’ interests conflict and the conflicting desires or
contradictory accounts of events require their attorney to take action to serve
the best interests of one client, but the attorney can’t do so without
violating a duty owed to a sibling, or the attorney is prevented from
independently evaluating the best interests of each minor client. (In re
Zamer G. (2007) 153 Cal.App.4th 1253, 1267.)
Courts
recognize that the conflicting preferences of minor clients do not necessarily
give rise to a disqualifying conflict, as it is the attorney’s responsibility to
make a reasonable, independent determination of the minors’ best interests, notwithstanding
the minors’ preferences. (
need withdraw simply because she does not believe her client’s account of
events or disagrees with what the child thinks is in his or her best
interests. (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541–1542.) In Kristen
B., the child’s attorney questioned her client in a way that showed she
disbelieved her recantation of previously consistent disclosures of sexual
abuse by her stepfather. (
but argued that return to parental custody would expose her client to a substantial
risk of sexual abuse; the court agreed. (
On
appeal, the mother argued the child received ineffective assistance of counsel
because a conflict arose once the attorney disagreed with the child’s stated
wish to return home, and her duty of loyalty prohibited her from challenging
her client’s testimony. (
The appellate court disagreed. It
found that, “counsel performed her duties under section 317 zealously and
effectively by conducting a factual investigation and advocating a position,
supported by the evidence, which served to protect Kristen’s welfare. [Citation.]
She clearly informed the court of the conflict between Kristen’s stated
interest and what she believed was in Kristen’s best interests. The record provides no basis whatsoever to
conclude Kristen received ineffective assistance of counsel when minor’s
counsel advocated a position she believed was in Kristen’s best interests, notwithstanding
Kristen’s stated wishes. [Citation.]†(Id.
at p. 1542.)
title="">[7]
inapposite. There, the appellate court
affirmed “the juvenile court’s order disqualifying [minors’ counsel] from
representing four of the siblings because the record contain[ed] substantial
evidence of an actual conflict among those four siblings†(id. at p. 1257), viewing the circumstances most favorably to the trial
court’s order. (Id. at p. 1271.) The
disqualified attorney had “received confidential information†from two of the
siblings. (Id. at p. 1261.) “To
advocate in favor of reunification services for [the other two siblings,
counsel] would have to dispute the accuracy or reliability of the statements
made by†the siblings from whom counsel had received confidential information. (Id.
at p. 1272.) The court stated the
“juvenile court could reasonably conclude that there was an actual conflict
because [counsel] could not professionally and independently evaluate each
child’s best interests when faced with this dilemma.†(Ibid.,
italics omitted.) Here it is speculative
and unlikely that either child made significant confidential disclosures to
Ackman. Further, both girls were placed
on call to testify at the adjudication hearing; the fact that mother did not
call either one to testify suggests that neither one’s testimony was critical.
Further,
mother has not shown how Ackman’s joint representation prejudiced her. Separate counsel for A.R. would still be
bound by section 317, subdivisions (c) and (e)(2), to advocate in a manner that
protected A.R. and to advance her best interests, not just her stated
wishes. A parent claiming ineffective
assistance of counsel “‘must demonstrate both that: (1) his appointed counsel failed to act in a
manner expected of reasonably competent attorneys acting as diligent advocates;
and that (2) this failure made a determinative difference in the outcome,
rendering the proceedings fundamentally unfair in that it is reasonably
probable that but for such failure, a determination more favorable for [the
parent’s] interests would have resulted.’
[Citations.]†(
p. 98.)
There
is no reason here to expect that there would have been any different placement
order. The juvenile court makes
credibility determinations and resolves factual conflicts. (In re
Daniel G. (2004) 120 Cal.App.4th 824, 830.)
Here, the court was convinced by the police report that domestic
violence had occurred and that neither mother or Jose was credible. It also found mother had coached the girls and
intimidated them so they would lie. It
does not matter that mother disagrees with that conclusion. Her effort to have this Court reject that
finding and reweigh the evidence is unavailing.
(In re Casey D. (1999) 70
Cal.App.4th 38, 52–53.)
On
this record, there is no reasonable probability that mother would have received
a more favorable outcome had A.R. been represented by separate counsel. The duty of an attorney representing A.R.
alone would be to advocate for A.R.’s best interests, even if they conflicted
with her wishes. (In re Kristen B., supra,
163 Cal.App.4th at pp. 1541–1542.) We
have no reason to believe another attorney would have sought a different result
here.
Finally,
we observe again that, for good reason, mother does not argue that there is
insufficient evidence to support the court’s jurisdictional findings or
dispositional order. The juvenile court
found that mother’s and Jose’s denials of domestic violence, physical abuse by
Jose and alcohol abuse by Jose were not credible. Setting aside the intermittently
contradictory statements by the girls, the court had sufficient evidence to
sustain the petition and support the dispositional orders. First, there was the statement by the manager
of the apartment complex, who said she had been called before about possible
domestic violence between mother and Jose.
There was also a 2009 police report detailing Jose’s physically abusive
behavior toward his then-girlfriend, and his threat to kill her, and statements
by Jimmy who said Jose would hit H.R. and A.R.
When Jimmy had confronted mother about a mark on A.R.’s leg, and his
concern that Jose, whom he had often observed to be “‘very drunk,’†was
physically abusing her, mother told him it was “‘not [his] business’†to know
how she had been hurt. And, finally,
DCFS had information from a witness it found “reliable†that mother scolded
H.R. during visits and blamed her for disclosing domestic violence. This constitutes sufficient evidence to support
the jurisdictional findings. Mother’s
inappropriate behavior toward H.R. for disclosing abuse, coupled with
information that mother refused to accept responsibility for her role in that
abuse, constitutes substantial evidence to support the disposition order.
The appeal is dismissed.
NOT TO BE PUBLISHED.
JOHNSON,
J.
We concur:
CHANEY, Acting P. J.
MILLER, J.
name="_ftn1" title="">[1] Jose is the father of K.P.
Jimmy R. (Jimmy) is the father of H.R. and A.R. Neither is a party to this appeal.
name="_ftn2" title="">[2] All undesignated date references are to 2012.
