Opinion
B162321.
7-31-2003
In re CYPRESS Q., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. FRANK M. et al., Defendants and Appellants.
John L. Dodd, under appointment by the Court of Appeal, for Defendants and Appellants. Lloyd W. Pellman, County Counsel, Sterling Honea, Principal Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Frank and Maria M., are the maternal grandparents and former legal guardians of Cypress Q., a juvenile court dependent. The grandparents were named legal guardians of the child, but the juvenile court retained jurisdiction. The child was subsequently detained in Nevada and returned to California pursuant to a protective custody warrant after the grandparents unilaterally relinquished their guardianship of him and gave physical custody of the youngster to the mother, Angie Q. There are two separate appeals. First, the grandparents appeal from an October 23, 2002, juvenile court order impliedly denying their request that the child be returned to their custody. We will dismiss that appeal as moot. On December 12, 2002, the grandparents agreed to terminate their guardianship and the juvenile court so ordered. The second appeal involves proceedings on January 22, 2003. At a later hearing, on January 22, 2003, the grandparents asserted they had been misled by their court-appointed counsel. On February 5, 2003, the grandparents also appealed, in their words, "[We] appeal from the findings and orders of court . . .: January 22, 2003, orders denying appointment of counsel, order denying request for hearing to get new counsel and all other orders." As to the second appeal, we affirm.
II. BACKGROUND
The child was born in 1998. When the child was two months old, he suffered several fractured ribs. The parents were unable to explain how the injuries occurred. The child was declared a dependent of the juvenile court and placed with the grandparents. (Welf. & Inst. Code, § 300.) On October 4, 2000, the grandparents were granted legal guardianship of the child.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
In January 2001, the grandparents moved with the child to Las Vegas, Nevada. One month later, the parents also moved to Las Vegas. At a review hearing on April 12, 2001, the juvenile court ordered the Department of Children and Family Services (the department) to assist the grandparents in obtaining legal guardianship in Nevada. The department was also ordered to file a report addressing potential termination of jurisdiction in California once a Nevada guardianship had been obtained. The mother was allowed unmonitored visitation, including overnight visits. The father was allowed visits monitored by the grandparents. However, the grandparents did not want to obtain legal guardianship in Nevada since they had already done so in California. In addition, they wanted the juvenile court to terminate its jurisdiction.
In a notarized letter dated April 10, 2001, addressed to the childs counsel, the grandparents stated, "We have decided to terminate our guardianship of [C.]" because of "the progress [the parents] have made since the last court appearance on Oct. 4, 1999." In an October 2, 2001, letter addressed to the department, the grandparents stated in part: "We do not want anything to do with social workers or any court here in California or in Las Vegas . . . so please get us off your records. We really appreciated all your help in the past. If we ever need help again [we] will take the steps necessary to get it."
On October 4, 2001, the juvenile court ordered an expedited Interstate Compact for the Placement of Children. In December 2001, the department reported that the child was living with his grandparents in Nevada and was attending day care three days a week. The grandmother said the father visited with the child during visits with the mother. The parents no longer lived together. The department social worker expressed concern for the childs safety given the fathers access and noted that social workers would shortly be traveling to Nevada to assess the situation. On December 10, 2001, however, the grandmother spoke to a Nevada social worker. The grandmother claimed to have given custody of the child to the mother in April 2001. The grandmother did not know their whereabouts. Department personnel advised social workers in Nevada that if the child was found he should be detained. The childs residence could not be confirmed. Conflicting reports placed the child with the grandparents, the parents, or an aunt and uncle residing in Nevada. The grandmother expressed concern the father might take the child to Puerto Rico to avoid detention.
The department subsequently discovered the mother had taken physical custody of the child. A department social worker traveled to Las Vegas, Nevada, in an unsuccessful attempt to see the child. The social worker, Martha Pina, stated it was her impression the grandparents had prearranged to return the child to the parents as soon as they moved to Las Vegas. Steps were taken to find the child and return him to California.
In January 2002, the department requested that a protective custody warrant be issued. In its January 3 and 31, 2002 reports, the department requested that the juvenile court terminate the grandparents legal guardianship. The department indicated it intended to detain the child and return him to California. On January 3, 2002, the juvenile court issued a protective custody warrant pursuant to section 340.
On January 31, 2002, without notice to the grandparents that the issue would be considered, the guardianship was terminated. The juvenile court deemed the departments January 3, 2002, detention report to be a section 388 petition encompassing termination of the guardianship. The mother, who was present in court, was ordered to return to court with the child on February 6, 2002, without further order or subpoena. The protective custody warrant was recalled and quashed. The mother and child failed to appear in court on February 6, 2002. The court issued a protective custody warrant for the child, and an arrest warrant for the mother. No appeal from the February 6, 2002, order was filed.
The child was detained on February 12, 2002, and returned to California on February 14, 2002. He was placed in foster care where, it appears, he has remained.
The grandparents, mother, and child appealed from the order terminating the legal guardianship. Along with the department, they stipulated to a reversal and the immediate issuance of a remittitur. On October 9, 2002, we issued an opinion reversing the order terminating the guardianship based on absence of notice grounds, ordered the remittitur to issue forthwith, and remanded for further proceedings after proper notice to all the parties. (In re Cypress Q. (Oct. 9, 2002, B156670) [nonpub. opn.].)
On October 23, 2002, a hearing was held to review progress on the interstate compact proceedings in Nevada. The juvenile court observed that the order terminating the guardianship had been reversed on appeal and the matter had been remanded. Charles Murray was appointed to represent the grandparents. The juvenile court gave the department one week to file a section 388 petition to terminate the guardianship. The section 388 petition was set for a contested hearing on December 12, 2002.
The mothers counsel argued the guardianship had been reinstated pursuant to our October 9, 2002, unpublished decision and the child should be immediately returned to the grandparents. The childs counsel objected and asserted that the child had been appropriately detained. The mothers attorney argued: that the merits of the departments request to terminate the guardianship had never been lawfully adjudicated; no findings should be made that the guardians were not "appropriate"; there was only a "prima facie showing that the [child] should have been detained"; there was no clear and convincing evidence warranting removal of the child from the grandparents care; and there was no basis for further detention of the child. Mr. Murray, the grandparents counsel, joined in the mothers attorneys objections. The juvenile court responded, "We [have] got our hearing date."
The department filed a section 388 petition on October 28, 2002, seeking termination of the legal guardianship. The department alleged that: the grandparents had moved with the child to Nevada and allowed the mother to become his primary caretaker; a Nevada social worker found the grandparents lived in an adults only trailer park; the child had never lived with the grandparents in Nevada; in April 2001, the grandmother had asked the childs counsel whether the youngster could live with the parents; the attorney had told her no; and a department social worker who traveled to Nevada in December 2002 also found that the child appeared to be living with the parents.
The grandparents were present and represented by Mr. Murray at the December 12, 2002 hearing. The parties had reached a settlement. The grandparents agreed to termination of the legal guardianship. The juvenile court so ordered. No notice of appeal from the December 12, 2002, order terminating the legal guardianship was filed.
A hearing was held on January 22, 2003. The grandparents received permission to address the court. The following transpired: "[The grandmother]: We have a strong feeling we were misled and misrepresented by Mr. Murray. My husband and I would like to have a hearing with the Marsden attorney, if possible. [P] THE COURT: Youre not guardians anymore and you dont have an attorney anymore. Marsden is for when you have an attorney and Im replacing it. [sic] You dont have an attorney anymore because youre not parties to the case anymore. I think you can talk to Mr. Murray about your proper remedy by appeal or writ. [P] [The grandfather]: Okay. Hes not here today. I havent seen him. Mr. Murray misled us. He was not supposed to be representing us as an attorney because he was representing the babys father at the time. Its right here. Would you like to see it? [P] THE COURT: It doesnt make any difference. Those orders have been made. [P] [The grandfather]: He was representing—[P] THE COURT: Youll have to take it to the Court of Appeal. I dont think theres anything I can do about it. [P] [The grandfather]: Okay. Thank you."
III. DISCUSSION
A. The Appeal from the January 22, 2003, Orders
The grandparents appeal from the juvenile courts January 22, 2003, refusal to consider their complaints about appointed counsel. The grandparents contend their attorney, Mr. Murray, "misled and misrepresented" them, apparently resulting in their agreement to terminate the guardianship.
The grandparents were entitled to competent and effective counsel. ( § 317.5, subd. (a); Cal. Rules of Court, rule 1438(c); In re Daniel H. (2002) 99 Cal.App.4th 804, 812; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1660-1667.) Further, pursuant to rule 1438(d), the juvenile court has a duty, in general, to consider complaints regarding court appointed attorneys. Rule 1438(d) states: "The court must establish a process for the review and resolution of complaints or questions by a party regarding the performance of an appointed attorney. Each party must be informed of the procedure for lodging the complaint. If it is determined that an appointed attorney has acted improperly or contrary to the rules or policies of the court, the court must take appropriate action." In that regard, the Local Rules of the Superior Court of Los Angeles County provide as follows: "Client Complaints. [P] (1) Notice. Written notification of the following procedures shall be given to all parties at the earliest possible stage of the dependency court proceeding. [P] (2) Procedure. Complaints regarding court appointed attorneys may be made directly to the agency or law firm employing the attorney . . . or may be made directly to the court either orally or in writing. [P] . . . [P] (b) If the complaint is made to the court, the court shall evaluate the complaint and take any appropriate action." (Super. Ct. L.A. County, Local Rules, rule 17.16(d).)
All further references to a rule are to the California Rules of Court except where otherwise noted.
1. Conflict of Interest
The grandparents assert Mr. Murray had a conflict of interest because he had previously represented the father. They argue as follows: because of this dual representation Mr. Murray had divided loyalties and a conflict of interest; Mr. Murray breached his duty not to undertake the dual representation; the juvenile court breached its independent duty to inquire as to potential conflicts of interest; the grandparents, as guardians, were thus denied their statutory and due process right to effective assistance of counsel; "it is reasonably likely there was an actual conflict of interest because the grandparent-guardians wanted the minor returned to their care in Nevada, while the fathers interest may lie in having the minor here in California"; and all orders resulting from hearings at which Mr. Murray represented the grandparents on October 23, 2002, and December 12, 2002, must be vacated.
On appeal, the trial courts decision on a client complaint regarding appointed counsels alleged conflict of interest may only be reversed if there is a miscarriage of justice. (Cf. In re Richard E. (1978) 21 Cal.3d 349, 355 [failure to appoint counsel in a freedom from parental custody and control proceeding]; In re Daniel H., supra, 99 Cal.App.4th at p. 812 [mothers ineffective assistance of counsel claim]; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [mothers ineffective assistance of counsel claim]; In re Candida S. (1992) 7 Cal.App.4th 1240, 1252 ["the right to independent counsel in dependency cases is . . . subject to harmless error analysis upon review"]; In re Elizabeth M. (1991) 232 Cal. App. 3d 553, 567-568, 283 Cal. Rptr. 483 [failure to appoint independent counsel for children with varying interests]; In re Brittany H. (1988) 198 Cal. App. 3d 533, 555, 243 Cal. Rptr. 763 [child not represented by independent counsel].) The Courts of Appeal have variously held that in a dependency proceeding, an attorney may not represent multiple parties among whom there is an actual (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1431; In re Candida S., supra, 7 Cal.App.4th at p. 1252) or a potential conflict of interest. (In re Elizabeth M., supra, 232 Cal. App. 3d at pp. 565-566.)
We assume, without deciding, that the juvenile court had a duty on January 22, 2003, to evaluate the grandparents complaints about Mr. Murrays representation of them even though the guardianship had been terminated. ( § 317.5, subd. (a); rule 1438(c) & (d); Super. Ct. L.A. County, Local Rules, rule 17.16(d).) However, we find no miscarriage of justice in the present case. First, Mr. Murray never represented the father. Instead, Mr. Murray "specially appeared" for the fathers attorney at a hearing held on April 8, 2002. A contested evidentiary hearing was held on the mothers section 388 petition for return of the child. The father testified in support of the mothers petition. No argument was made with respect to the fathers rights and no order was entered as to him. Second, Mr. Murray stood in on January 22, 2003, he did not then represent the grandparents. Mr. Murray was subsequently appointed, on October 23, 2002, to represent the grandparents. Third, there was no actual or potential conflict of interest. Mr. Murray did not, as the grandparents contend, simultaneously represent two clients with opposing interests. Further, the grandparents speculate that the fathers interests might have diverged from theirs. They hypothesize that the father might have wanted the child to remain in California rather than return to their care in Nevada. However, the grandparents point to no evidence in the record that the father ever expressed or advanced such a desire. Accordingly, even if the juvenile court erred in failing to evaluate the grandparents complaint about Mr. Murrays purported conflict of interest, the error was harmless. Therefore, no basis for reversing the order terminating the legal guardianship due to ineffective assistance of counsel has been established.
2. Ineffective Assistance
The grandparents also claim ineffective assistance of counsel at the October 23, 2002, hearing in connection with the juvenile courts implied denial of their request that the child be immediately returned to them. The grandparents argue Mr. Murray was ineffective for the following reasons: "At the October 23, 2002, hearing, Mr. Murray did virtually nothing. He announced his appearance . . ., noted the [grandparents] would be contesting a section 388 petition to be filed by the county . . . and-after the court had denied [the mothers counsels request that the child be returned to the grandparents]-joined in the requests made by counsel for the mother that the court order the minor placed with the guardians. . . . He did not argue a section 387, not a section 388 petition, was required. He did not argue the guardians case, nor did he file a habeas corpus petition or take some other step to secure custody of the child." (Original italics.)
In order to succeed on an inadequate assistance of counsel claim, the dissatisfied client must show that his or her attorney was ineffective and it is reasonably probable a more favorable result would have been reached absent the lawyers errors. (In re Joshua M. (1997) 56 Cal.App.4th 801, 808; In re Kristin H., supra, 46 Cal.App.4th at p. 1668.) We need not decide whether the grandparents could meet the first part of the ineffective assistance of counsel dichotomy because even if they could, they have failed to establish prejudice. There was substantial evidence the grandparents had, contrary to juvenile court orders and to the advice they received from the childs attorney, unilaterally terminated their guardianship of the youngster and returned the youngster to the mothers custody. There was written evidence the grandparents no longer desired to act as the childs guardian and were opposed to intervention by social workers or the courts. Moreover, the grandparents had allowed the father unmonitored contact with the child in contravention of the juvenile courts visitation orders. Under these circumstances, it is not reasonably probable any court would have returned the child to the grandparents custody even had Mr. Murray strongly advocated that course of action.
B. Appeal from the October 23, 2002, Order
With respect to the October 23, 2002, order, the grandparents assert: it was reversible error to deny their request to return the child to them because there was no petition before the juvenile court justifying his removal from their custody; a section 388 petition was inappropriate, and a section 387 petition was required; further, because no section 387 petition was filed, there was no procedural basis upon which to continue the removal of the child from their care; and the trial courts refusal to comply with the statutes and order the childs return to the grandparents was an act in excess of its jurisdiction. Further, the grandparents argue, there was no factual basis for removing the child from their custody. In their notice of appeal from the October 23, 2002 order, the grandparents state: "Oct. 23, 2002 court continued to detain our grandson in foster care when Court of Appeal reversed the termination of our guardianship. We have had no opportunity to participate in any hearing, to present any evidence that he was safe in our care, or to dispute accusations made against us. Further, the court allowed the department one week to file a 388 terminating our guardianship (again). Where are our due process rights? Our grandson should be returned today."
We find the grandparents appeal from the October 23, 2002, order impliedly denying their request for return of the child is moot. (Cf. In re J.I. (2003) 108 Cal.App.4th 903, 913; In re Josiah S. (2002) 102 Cal.App.4th 403, 415-416; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1296; compare, In re Raphael P. (2002) 97 Cal.App.4th 716, 722, fn. 1.) On December 12, 2002, the grandparents agreed to terminate their guardianship and the juvenile court so ordered. No notice of appeal from the December 12, 2002, order terminating the guardianship was filed. The February 5, 2003, notice of appeal specifies orders entered on January 22, 2003; it cannot be construed to encompass the December 12, 2002, order terminating the guardianship. (Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91-92, 17 P.2d 703; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal. App. 3d 35, 46, 47, 269 Cal. Rptr. 228; Eskaton Monterey Hospital v. Myers (1982) 134 Cal. App. 3d 788, 790, 184 Cal. Rptr. 840.) The December 12, 2002, order is now final. Because the appeal is moot as to the October 23, 2002, order, it is dismissed as to that date.
IV. DISPOSITION
The appeal from the October 23, 2002, order is dismissed. The appeal from the December 12, 2002, order is affirmed.
We concur: GRIGNON, J., ARMSTRONG, J.