Opinion
F083281
07-19-2022
In re AUTUMN C., a Person Coming Under the Juvenile Court Law. v. HEATHER J., Objector and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Lelah S. Fisher, under appointment by the Court of Appeal, for Objector and Appellant. Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County Counsel, for Plaintiff and Respondent. Jamie A. Moran, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County No. JD142011-00. Lorna H. Brumfield and Harry A. Staley, Judges. (Assigned by the Chief Justice pursuant to art. VI, section 6 of the California Constitution.)
Judge Brumfield ruled on appellant's request to relieve minor's counsel and Judge Staley presided over the contested disposition hearing.
Lelah S. Fisher, under appointment by the Court of Appeal, for Objector and Appellant.
Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County Counsel, for Plaintiff and Respondent.
Jamie A. Moran, under appointment by the Court of Appeal, for Minor.
OPINION
THE COURT[*]
In this juvenile dependency case, Heather J., mother of almost two-year-old Autumn C., appeals from the juvenile court's dispositional orders. Mother first contends the court erred by denying her request to relieve minor's counsel, a deputy public defender, from representing Autumn in the underlying dependency case based on a conflict of interest because another deputy public defender had represented mother at a pretrial hearing in a criminal case arising from the same facts as the dependency proceedings. Mother also contends the factual findings underlying the dispositional order removing Autumn from her custody pursuant to Welfare and Institutions Codesection 361, subdivision (c)-that there was a substantial danger to Autumn if she were to be returned to mother and that no reasonable means existed to prevent removal-were not supported by sufficient evidence. Finding no error, we affirm the juvenile court's order declining to disqualify minor's counsel and its dispositional findings and orders.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Facts Leading to Dependency Petition
In April 2021, mother reported to the Kern County Sheriff's Office that her boyfriend, Daniel F., had had anal sex with her while she was asleep. Mother had not woken up during the assault, and five-month-old Autumn and Autumn's half siblings, four-year-old G. and 10-year-old K., were present in the home asleep. Weeks later, a deputy sheriff called mother to follow up on the report and opined mother sounded "extremely impaired" and may have been under the influence of opiates or marijuana or possibly drunk. Because the deputy was concerned about the children, she reported to mother's residence. When the deputy contacted mother, she observed that mother appeared to be intoxicated as evidenced by erratic behavior, slow speech, and an inability to comprehend what was going on. The deputy further observed the home was dirty, and there was a large glass bong, wax and wax paraphernalia, and an open pocket knife all accessible to the children. Mother insisted all the drug paraphernalia belonged to Daniel. Mother reported she suffered from seizures and bipolar disorder and was not taking her medication due to breastfeeding. Autumn, G., and K. were all present in the home during the deputy's welfare check, and the deputy placed a protective hold on the children; Autumn's half siblings were released to their biological fathers, and the Kern County Department of Human Services (department) took custody of Autumn.
The investigating social worker spoke to mother later that day, and, according to the social worker, mother exhibited slow, slurred speech and aggressive behavior. Mother reported Daniel was Autumn's father. She explained the condition of the home by stating she had had seizures the three nights before the children were removed and had not had time to clean up. She further reported she had been abusing prescription medication around the time G. was born, but no longer did so. She was prescribed medication for seizures and bipolar 1, and used marijuana. Mother agreed to drug test and provided the social worker with a medication print out of all her prescription medication.
Daniel was a party to the underlying proceedings and was determined by DNA testing to be Autumn's biological father. He is not a party to the present appeal.
The following day, the social worker visited mother's home. The social worker noticed mother's speech was no longer slow or slurred, that mother maintained good eye contact, and her body did not sway. Mother's home was clean and organized with no concerns. The social worker explained to mother the department was concerned about possible abuse of prescription medication. When the social worker asked about mother's slowed speech, droopy eyes, and aggressive behavior she had exhibited the day before, mother reported these behaviors were symptoms of having a seizure. Mother reported she stopped abusing prescription medication when G. was born. When asked how, she stated she "just stopped." When the social worker asked mother to see her medication, mother informed her she threw all of them out except her seizure medication because she did not want it to be a problem. Mother was advised the department wanted her to take her medication as prescribed.
The social worker spoke to K. and K.'s father. K. reported to the social worker that she had a great relationship with mother and had no concerns. She denied mother used drugs and never noticed her acting differently. When asked if she ever had trouble waking mother up, she stated sometimes mother is tired in the morning from watching Autumn at night. K. reported she was not worried about anything at mother's house. K's father reported that when he and mother were married, she would "abuse her prescription medications specifically 'benzos.'" He described mother's behavior when she was using as agitated and "not there" and that she exhibited slurred speech, did not make eye contact, and was combative. He was not sure if mother was currently using but "sometimes she sounds like she is." He ended the relationship with mother because she was physically and verbally abusive toward him.
The social worker also spoke with G. and G.'s father. G. reported to the social worker that everything was good when he was at mother's and he had no worries. G's father reported he was concerned mother was using drugs. He explained that when they were a couple, she would use all of her medications and run out by the end of the month and that her seizures were due to her abuse of medication. When mother was pregnant with G., she was in and out of the hospital due to her abusing her medication, specifically Xanax. When mother was abusing medication, she talked very slowly and was unable to focus. G.'s father noticed she exhibited these behaviors about two weeks prior when he dropped G. off with her. G.'s father was concerned but felt he had to leave his son due to the custody arrangement and advised he was in the process of seeking full custody of G.
Mother had previous child welfare referrals. In March 2016, the department received a referral alleging general neglect; it was reported she was 15 weeks pregnant and tested positive for marijuana. The referral was "evaluated out."
In September 2016, the department received a referral alleging general neglect. Mother had given birth to G. and was reported to be "high as a kite"; her speech was slurred and she was falling asleep prior to delivering the baby. At the time of G.'s birth, she tested positive for benzos, opiates, and THC. G. was in the NICU because he was experiencing withdrawals. During the investigation of the referral, mother admitted to taking Tylenol 3 and her prescribed psychotropic medications, and smoking marijuana twice per week due to a diagnosed eating disorder. Mother denied taking illegal drugs but declined to drug test. The referral for general neglect was substantiated. G. was left in mother's care because mother was living with the maternal grandfather and it was determined mother was "capable of caring for the children with ongoing family support."
In November 2016, a referral was received alleging general neglect. Law enforcement responded to do a welfare check and G. appeared to be in good health with no obvious health concerns. The home was adequate and mother did not appear to be under the influence of any controlled substances. The referral was evaluated out.
In July 2017, a referral was received alleging general neglect and emotional abuse. It was alleged during a child exchange mother got into a fight with the girlfriend of G.'s father. It was reported mother was addicted to prescription medication and the addiction was getting worse. Mother reported to the social worker investigating the referral that she did assault G.'s father's girlfriend but that she "deserved it" and the children did not see it. The social worker was unable to make further contact with mother and was denied entry into the home, and for that reason, the allegations were deemed inconclusive and the referral was closed.
Petition, Detention, and Jurisdiction
On May 3, 2021, the department filed a petition on behalf of Autumn, alleging she came within the court's jurisdiction under section 300, subdivision (b), in that she had suffered or was at substantial risk of suffering serious physical harm or illness due to mother's failure to provide adequate shelter as evidenced by the unsanitary living conditions and the marijuana paraphernalia and open knife accessible to the child, substance abuse as evidenced by mother's condition and history abusing prescription medication, and mental health issues as evidenced by her report she had a bipolar 1 disorder and a seizure disorder and was not taking her medication as prescribed.
At the detention hearing on May 6, 2021, mother requested the release of Autumn. The court found sufficient evidence to detain Autumn and ordered her detained from mother and set a jurisdiction/disposition hearing.
The parents waived their rights to a jurisdiction hearing and submitted on the department's report and recommendation that the court take jurisdiction over Autumn. On June 4, 2021, the court found the petition true and that Autumn came within its jurisdiction under section 300, subdivision (b). The court set the matter for a contested disposition hearing.
Mother's Request to Disqualify Minor's Counsel
At a hearing on August 5, 2021, the date set for the disposition hearing, minor's counsel, a deputy public defender, notified the court that mother's counsel had informed her that mother had a pending misdemeanor criminal action in the Lamont court.Minor's counsel represented that mother had appeared with "the temporary public defender out in Lamont" for a pretrial hearing on July 25, and the pretrial was continued to the end of August. Mother had had one other appearance in the case; her arraignment where she appeared with no counsel. Minor's counsel stated her normal practice would be to ask the attorney in the criminal case to conflict out since she had had the dependency case since May. When the court asked if the public defender's office did conflict checks, minors' counsel responded that they did but "it might have gotten missed" because the attorney in the criminal matter was "just filling in."
The jurisdiction report dated May 17, 2021, indicated mother was charged with three counts of misdemeanor violations of Penal Code section 273A, subdivision (b), on May 3, 2021.
The record indicates the dependency proceedings took place in Bakersfield.
Mother's counsel asked the court to relieve the public defender's office from the dependency case, stating that mother "did have quite an extensive conversation with the public defender in Lamont," and that he was asking the entire office to be relieved "due to the ethical conflict."
When the court asked minor's counsel to address the issue, she responded, "Well, I certainly am unaware. I certainly could sequester any files or any information or ask that it be sequestered. At the end of the day, I don't have a personal stake in it." Minor's counsel suggested the proper remedy would be for the office to conflict out of the criminal case "since there's just been the one pretrial," and in contrast, minor's counsel had "extensive information" about the dependency case.
The court addressed mother and advised her that if it were to relieve minor's counsel due to the conflict, the public defender's office in Lamont would still have to conflict out based on the extensive information known by minor's counsel in the dependency case. Mother told the court she liked the public defender and did not want to change anything. The court advised mother that the public defender could not represent her but there was a question as to whether minors' counsel could continue to represent Autumn and that the court was leaning toward allowing minors' counsel to proceed because there was no "actual conflict at this time with respect to her knowledge of th[is] case" and that the court would order that she not obtain any information with respect to the criminal case.
The court reserved ruling on the issue so that minor's counsel could "sort it out" and "decide who's gonna conflict out of which case and whether both need to conflict out." The court noted it did not want to create an appealable issue or relieve minor's counsel if she did not need to be relieved so as to not create undue delay in the case. The court continued the matter.
On August 17, 2021, the next date set for the contested disposition hearing, minor's counsel represented that the public defender's office had conflicted out of mother's criminal case.
Mother's counsel stated he believed there was still a conflict. He stated, "[i]f there's a conflict in Lamont, there's certainly a conflict here" and again requested minor's counsel be relieved. Mother's counsel went on to argue, "I believe there is a case on point, although I don't have that … [b]ut, as I recall, that case talked about when there is a-in dependency a representation of the minors where that office has also represented the parent, the burden of proof is on the office that is representing the minors to prove that there is an ethical wall or some procedure to deal with the conflict, and there is no such evidence here." Mother's counsel later represented the case he was thinking of was In re Charlisse C. (2008) 45 Cal.4th 145 (Charlisse C.), "[a]nd that was an issue with regard to the ethical walls. And it was the case of mother and child who had conflicting interests. And so I'm asking that the court relieve the public defender's office and appoint new counsel. Submitted."
Minor's counsel responded by saying "we addressed that last time" and mother's counsel had not filed any additional points and authorities. She went on to say that she was familiar with Charlisse C. She reiterated that a "temporary attorney" with the public defender's office appeared one time for mother and continued a pretrial in Lamont and minor's counsel had had no contact with any attorney from Lamont. Minor's counsel went on to say that she had been on the dependency case since May 4, 2021, did not have any personal interest in the case, and had had "no discussion or any access to anything out in Lamont." The court confirmed that minor's counsel had "absolutely no information whatsoever about that criminal matter that's pending against mom?" and minor's counsel responded, "I don't. I have never had a conversation with any Deputy Public Defender or anybody in our office about that."
The court asked for final comments from the parties. Mother's counsel stated that the criminal action arose from the same facts and that the "representation that [minor's counsel] has been on this for a long time and hasn't gotten any information" did not meet the public defender's office's burden "to show that there is an ethical wall in place." Mother's counsel then went on to state, "My recollection of this is that when [the public defender in the criminal case] appeared on that case in Lamont for the arraignment, he had a conversation with [mother] and then sent me a text message. And I thought that we had a conversation after that, but I was on vacation. I may have been mistaken. I know that there was a text message because I have it and I reviewed it." Mother's counsel further stated, "But there was a 30-mnute conversation between my client and that public defender. I don't know if there was any further conversations between any public defenders and my client. And based on that and the fact that the public defender-I mean, they are wanting to show that there's no way that they could get information, but they didn't even detect the conflict. So there's not a procedure in place to do that, much less make sure that that information stays out of someone else's hands. I would submit on those comments."
In ruling, the court stated, "Since [the hearing in the criminal case] was an initial hearing that really wasn't one of substance and it was a temporary public defender-and I do know the public defender has a conflict system in place, but I know sometimes it fails, just like all systems sometimes fail. But they have no … ongoing representation. And it was just at a pretrial which a lot doesn't happen. And [minor's counsel] has represented that she has no idea what was said or even anything about the case. I'm gonna find that there's not a conflict in this case." The court went on: "Also, continuing and continuing cases when there's young children involved is an issue. Had [minor's counsel] had even a conversation or text or any kind of communication from the prior public defender in the criminal matter, it would be a completely different issue. And the representation was brief and was in Lamont. So I am going to find there is not a conflict based on the facts that were presented to me on the record here." The court concluded by saying that in the future points and authorities should be submitted to the court in advance.
Mother's counsel requested a continuance to file a writ petition in this court on the issue, which the juvenile court granted. Mother subsequently filed a petition for writ of mandate in this court, in H.J. v. Superior Court of Kern County (F083240). This court denied mother's writ petition without prejudice for failure to provide an adequate record and failure to state a prima facie case showing entitlement for relief.
Disposition Reports and Hearing
Mother began participating in parenting classes and substance abuse services. She visited regularly with Autumn, and her interactions with her were observed to be appropriate. On May 14, 2021, however, she was observed to appear to be falling asleep during the visit. As of July 2021, her level of participation in substance abuse services was reported as medium and her evaluation as satisfactory; in her parenting classes, her participation was reported as good.
Mother also participated in random drug testing. On April 24, 2021, she tested positive for Oxazepam, Alpha-Hydroxyalprazolam, Temazepam, and 11-nor-9-Carboxy-Delta-9-THC. On May 10, 2021, she tested positive for 11-nor-9-Carboxy-Delta-9-THC. On May 14, 2021, she tested positive for 7-aminoclonazepam, 11-nor-9-Carboxy-Delta-9-THC, Codeine, Morphine, Oxycodone, Oxymorphone. On May 28, 2021, she tested positive for 11-nor-9-Carboxy-Delta-9 THC. On June 3, 2021, she tested positive for 11-nor-9-Carboxy-Delta-9-THC, Oxazepam, Alpha-Hydroxyalprazolam, and Temazepam. On June 8 and July 6, 2021, she failed to appear for her tests. On July 7, 2021, she tested positive for Oxazepam, 7-aminoclonazepam, Temazepam, and 11-nor-9 Carboxy-Delta-9-THC. On July 20, 2021, she tested positive for Oxazepam, Temazepam, and 11-nor-9-Carboxy-Delta-9-THC.
On July 30, 2021, the social worker provided mother's medication list, including Temazepam 30 mg, Hydroxyzine HCL 25 mg, and Quetiapine Fumarate 300 mg, to National Toxicology Labs and questioned if the medications would show positive drug results. The social worker reported that National Toxicology responded, "This [is] to certify that the list of medications … will give positive results for … Oxazepam and Temazepam only."
On August 5, 2021, mother gave the social worker an updated copy of her medication list, and the social worker emailed National Toxicology Labs to inquire how the medications would affect mother's drug results. On August 13, 2021, the social worker received an email response from the lab. The social worker reported an excerpt from the e-mail stated: "This is to certify that medication Acetaminophen Cod #3 and Clonazepam 1 mg will give positive results for Codeine, Morphine and 7 Amino clonazepam. There is no medication listed for 11-nor-carboxy Delta 9 THC, Oxycodone and or Oxymorphone."
The department's recommendation for disposition was that the court adjudge Autumn a dependent, order her removed from mother's custody, and order the parents be provided with reunification services.
The contested disposition hearing was conducted on September 2, 2021. Mother called the social worker for cross-examination. The social worker testified that mother's home was found to be in good condition. Mother had completed parenting services and was participating in substance abuse services, with an estimated completion date in December 2021. Her interactions were appropriate with Autumn.
The social worker further testified the department was concerned about the reports that mother was drowsy during visits, "not being able to hold [Autumn] upright properly." Mother reported to the department it was her medication that caused her to be drowsy. However, according to the social worker, mother falling asleep during visits was not currently a concern. The department was concerned about the National Toxicology e-mail indicating there was no medication listed for the positive results on mother's tests of marijuana, Oxycodone or Oxymorphone.
Mother testified on her behalf. She testified she took Topamax for her epilepsy and headaches, Seroquel for her bipolar disorder, an anxiety pill, and Tylenol 3 for pain associated with a broken toe. She testified she did not suffer from seizures as often as she used to, and her last seizure was about two months ago. When the case first started, she was having frequent seizures because her stress and anxiety levels were high. She had since been meeting with her psychiatrist at least once per week and seeing a therapist twice per month.
Mother testified she took marijuana based on a doctor's recommendation. She had spoken to her primary care doctor and her psychiatrist about her use of marijuana, and they both had advised her they had no concerns about her using it and did not indicate there were any adverse effects in combining it with her other medications. Her psychiatrist advised her that her marijuana usage would help with her anxiety and seizures. Mother testified she did not take anyone else's medications and did not take any medication not prescribed to her besides marijuana. She almost fell asleep only during one visit, and it was because she switched medications which made her drowsy for about a week.
Mother further testified she knew when a seizure was coming on; she got symptoms which give her enough time to calm down and text or call her best friend or mom so they could come over, and the symptoms did not always result in a seizure. It took about 10 to 45 minutes between the onset of the symptoms and when she is unable to function. The last time she had had a seizure that came on without any notice was at the very beginning of her epilepsy about six years ago. She testified she "absolutely" could take care of Autumn. Mother had three people she could call in the event she got symptoms signaling the beginning of a seizure. In addition, her 17-year-old brother stayed with her during the week and she also had the option of having her best friend who has four children of her own stay with her on weekends.
Mother stated she had some bipolar episodes but not as many as before. She has had the condition long enough where she can recognize when she is having an episode and will separate herself by taking a shower to calm down and call someone to come over.
Mother denied taking Oxycodone and Oxymorphone and stated the test results indicating she had tested positive for those substances in May 2021 were inaccurate. She pointed out that drug test had a birthdate that was off by one day and had the wrong zip code and stated she had not been taking Tylenol 3 at the time of that test. She was adamant she did not take any pain medication other than Tylenol 3.
Mother explained she took her medication on a schedule, all at bedtime except Tylenol 3 and anxiety medication which she takes sparingly. She did not typically feel side effects of her medication anymore because she took them all at night.
When asked why she was going to substance abuse classes, she responded, "Because they asked me to, and I would do anything." When asked what her "drug of choice" was, she responded that it was THC, but she did not think of it as a drug of choice; to her it was a medical necessity. When asked if she had ever preferred muscle relaxants or "downers" as her drug of choice, she responded "no" and that she had her prescribed medication and if she needed something else, she would go to her doctors. When asked if she ever had any kind of substance abuse problem prior to or immediately prior to the dependency case being filed, she responded that she did not. Right before the case was filed, she did not have a substance abuse problem; rather, she had a "problem with [her] ex." She testified it was an unhealthy relationship that did not prevent her from taking care of her children but did interfere with her being able to keep up with housework. She had had a seizure the night before the police came at the beginning of the dependency case.
Mother's final witness was Samantha Goodman. Goodman testified she had known mother for 20 years. She had a safety plan with mother that consisted of mother contacting her if she is having symptoms of a seizure and is alone with Autumn, in which case Goodman would go to her house. Goodman lives two minutes away from mother, does not work, and is a retired teacher. She was familiar with mother's seizure disorder. She understood that the onset of a seizure can be caused by stress. Mother had called her three to five times in the past to help her while she was having a seizure. On these occasions mother had been sluggish, slow to respond, and not responding well. Goodman has not known mother to abuse any kinds of drugs and has never believed her to have a substance abuse problem.
After hearing argument, the court ruled it was going to follow the recommendation of the department and that its ruling was "based not on any particular factor alone but a totality of circumstances." The court noted mother "certainly has medication issues" and was coming out of a "very rough time" when the case was initiated. The court went on to say that mother "does have a plan to deal with her medical issues, the epilepsy, which does not by itself disqualify her from being a parent who has custody of children even minor children. She has a plan where two or three people can help." The court further stated, "If I were looking at this in the future, I would like to see she has essentially at least in addition to that a fail-safe. And I can understand a reluctance to do what I'm about to mention, but, you know, calling 9-1-1 if she's unable to reach any of the people that she indicated might or should be available to help her. It's not like they are on any rotating schedule where there's always one covering her. And everybody from time to time gets busy." The court concluded by saying it felt "that the risk is there and it's there by clear and convincing evidence at this time."
The court adjudged Autumn a dependent child of the court and found by clear and convincing evidence that there was a substantial danger to her physical health, safety, protection or physical or emotional well-being if she were not to be removed from mother and that there were no reasonable means to protect Autumn's physical health without removal. The court ordered Autumn removed from mother's physical custody. Mother was ordered to participate in reunification services including parenting and neglect counseling, substance abuse services, mental health counseling and medication management, and random drug testing. The court authorized the department to liberalize mother's visits to overnights and unsupervised weekend visits. Father was also provided with reunification services and placement with him as a noncustodial parent was found to be detrimental.
DISCUSSION
I. Denial of Mother's Request to Disqualify Minor's Counsel
Mother contends the court erred by denying her request to disqualify minor's counsel from representing Autumn. She contends minor's counsel had a conflict of interest because another attorney from the public defender's office appeared with mother in her criminal case and that disqualification based on the conflict should have been automatic. In the alternative, she argues the court erred because minor's counsel offered inadequate evidence of proper safeguards to protect confidentiality and ensure loyalty. We reject mother's claims.
A. Standard of Review
We review a trial court's decision on a disqualification motion for abuse of discretion, factual findings made in support of such a decision for substantial evidence, and its conclusions of law de novo. (Charlisse C., supra, 45 Cal.4th at p. 159.) "[A] disposition that rests on an error of law constitutes an abuse of discretion[, but t]he trial court's 'application of the law to the facts is reversible only if arbitrary and capricious.'" (Ibid.)
B. Relevant Legal Authority
Section 317, subdivision (c) provides, in relevant part, that a child in dependency proceedings is entitled to appointed counsel "unless the court finds that the child … would not benefit from the appointment of counsel…. [¶] … A primary responsibility of counsel appointed to represent a child … pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the child …. [¶] … Counsel may be a district attorney, public defender, or other member of the bar, provided that he or she does not represent another party or county agency whose interests conflict with the child's… interests." (Id., subd. (c)(1)-(3).) Once appointed, "[c]ounsel shall continue to represent the … child … unless relieved by the court upon the substitution of other counsel or for cause." (Id., subd. (d).)
Mother relies primarily on the frameworks established by Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432 (Castro) and Charlisse C., supra, 45 Cal.4th 145 to support her contentions.
In Castro, the appellate court considered an appeal from a denial of a motion for a preliminary injunction. (Castro, supra, 232 Cal.App.3d at p. 1434.) The plaintiffs challenged the Board's formation and funding of Dependency Court Legal Services, Inc. (DCLS), a corporation which replaced the panel of independent attorneys the superior court used to appoint attorneys to indigent parties in juvenile dependency proceedings. Under an agreement, DCLS was to represent as many as three separate parties, even if they had conflicting interests; the corporation had three divisions, each with a section head acting as attorney of record for that division reporting to an assistant director who in turn reported to the executive director. (Id. at p. 1436.) The plaintiffs alleged several ethical problems with the arrangement, including claiming that representation of multiple parties with potentially adverse interests created a conflict of interest within the corporation and its attorneys. (Ibid.)
The defendants alleged in opposition that the three groups were" 'three separate law firms, except that they all receive funding through the administrative unit and the administrative unit handles certain common administrative functions, unrelated to providing legal representation.'" (Castro, supra, 232 Cal.App.3d at p. 1437.) DCLS contended if its separate groups each represented an adverse party, no conflict of interest would occur based upon their protocols. (Id. at pp. 1437‒1438.) In support of the opposition, DCLS submitted a declaration from the head of one of the separate groups stating that the cases handled by his office were entirely within his discretion, and case files remained confidential to his office. His office would occupy separate suites, sharing only a supply room and photocopier with the other two groups, and he would have a separate staff and attorneys. (Id. at p. 1438.) Other declarations by heads of law groups stated no attorneys in their law groups worked out of the same suite as other law groups and no attorneys were ever instructed to stand in for attorneys from a different law group. (Ibid.) DCLS also submitted a copy of its "Conflict of Interest Policy and Procedures," which defined conflicts of interests and set forth a procedure to determine, report, and record conflicts of interests. (Ibid.)
The appellate court rejected the plaintiffs' argument that vicarious disqualification prevented DCLS from representing more than one adverse party in a dependency action based on the evidence, explaining the differences between a private law firm and DCLS, which was a nonprofit corporation. The court explained that as clients do not pay for services provided by DCLS, DCLS had no "obvious financial incentive" to favor one client over another. (Castro, supra, 232 Cal.App.3d at p. 1441.) The court further explained that DCLS had been structured so its attorneys and separate groups had no contact with another and that it was "not to be assumed hypothetically, in the absence of facts, that DCLS attorneys will act to violate their client's confidence or to compromise their legal interests" and the "structures" of DCLS "reinforce this ethical duty, which is well known to all attorneys." (Id. at p. 1442.) The court further noted that plaintiffs had cited no legal authority "that the DCLS arrangement would constitute the appearance of, or any actual, ethical impropriety" and affirmed the trial court's denial of the preliminary injunction. (Id. at pp. 1444‒1445.)
In Charlisse C., the parent in a juvenile dependency case moved to disqualify the Children's Law Center (CLC), formerly DCLS, from representing her child in the case. (Charlisse C., supra, 45 Cal.4th at p. 150, fn. 2.) CLC was a publicly funded, nonprofit law office comprised of three units: a core unit (Unit 1) and two conflict units (Units 2 and 3). (Id. at p. 149.) Unit 3 represented the minor in Charlisse C. and Unit 1 had previously represented the parent as a child in her own dependency case as well as in a dependency case involving another of her children. (Id. at pp. 149‒150.) The parent objected stating that structural changes made in CLC since Castro made it" 'operating as one firm,'" and the court advised mother it found no factual conflict but left open the possibility the parent could file a recusal motion and" 'make a record that, factually, the current structure of CLC violates' the structure Castro approved." (Id. at p. 151.)
The parent filed such a motion, alleged that CLC needed to show" 'it complie[d] with the structure set forth in Castro.'" (Charlisse C., supra, 45 Cal.4th at pp. 151‒152.) The parent alleged CLC's current structure did not comply with Castro and submitted several declarations from prior employees of CLC containing several specific allegations about the executive director of CLC" 'repeatedly violat[ing] the ethical walls'" by, for example, having access to and knowledge of confidential information and transferring employees between units without doing screening or conflict checks, and transferring cases between units without giving clients notice or an opportunity to be heard. (Charlisse C., at pp. 151‒154.)
CLC opposed the motion and argued that the parent's evidentiary showing was insufficient to warrant disqualification and that CLC's structure complied with the standards set forth in Castro as well as other decisions. (Charlisse C., supra, 45 Cal.4th at p. 155.) CLC submitted declarations from the executive director stating that when CLC shifted from representing both parents and children to only children, it had revised its operating procedures to implement a shift toward a more unified organizational structure with a core firm and conflict units rather than three semiautonomous divisions. (Ibid.) She further declared CLC adhered strictly to its operating procedures and enforced ethical walls and was unaware" 'of any material breaches'" of operating protocol. (Ibid.) She denied any executive officers or staff from Unit 1 had any access to case files or confidential client information in Units 2 and 3 and denied many of the specific personal allegations the declarations supporting the parent's motion made against her. (Id. at pp. 155‒156.) CLC submitted additional declarations from unit heads indicating no attorneys had access to other units. (Id. at p. 157.)
The juvenile court found no actual conflict of interest and no improper disclosure of confidential information but nonetheless disqualified CLC from representing the minor. (Charlisse C., supra, 45 Cal.4th at p. 150.) The juvenile court stated the question was "whether CLC's current structure 'either inherently or in practice violates the ethical walls that Castro mandated to be in place in order to allow an umbrella organization to represent more than one party in a pending lawsuit.'" (Id. at p. 157.) The juvenile court noted the declarations supporting the disqualification motion were more persuasive than CLC's opposition and explained it "g[o]t the impression that CLC says one thing and does something else…. They have established a structure which they claim they strictly adhere to, but the underlying facts suggest otherwise." (Ibid.) The juvenile court reiterated there was no evidence of an" 'actual factual conflict'" but that its order was based on its finding of" 'a Castro type [structural] conflict' created by 'a gradual erosion of [CLC's] ethical walls' that precluded CLC from 'represent[ing] more than one party to a lawsuit.'" (Id. at p. 158.)
A majority of a divided Court of Appeal reversed the disqualification order. The Supreme Court granted the parent's and minor's petitions for review, and ultimately affirmed the appellate court's order with directions to remand the matter for a new hearing, concluding the juvenile court applied the wrong legal standard in ordering CLC's disqualification. (Charlisse C., supra, 45 Cal.4th at p. 150.)
The Supreme Court in Charlisse C. began its analysis by explaining the difference between "successive representation" cases and "simultaneous representation" cases in the context of conflicts of interest. The court stated that "[c]onflicts of interest commonly arise in one of two factual contexts: (1) in cases of successive representation, where an attorney seeks to represent a client with interests that are potentially adverse to a former client of the attorney; and (2) in cases of simultaneous representation, where an attorney seeks to represent in a single action multiple parties with potentially adverse interests." (Charlisse C., supra, 45 Cal.4th at p. 159.) The court explained the primary fiduciary duty at stake in successive representation cases is confidentiality, and the primary fiduciary duty at stake in simultaneous representation cases is loyalty. (Id. at pp. 159‒ 160.) A conflict involving an attorney's duty of loyalty is the" 'most egregious'" kind of conflict and disqualification standards in simultaneous disqualification cases are" 'more stringent' than those that apply in successive representation cases." (Id. at p. 160.) In simultaneous disqualification cases, disqualification generally is automatic because" '[a] client who learns that his or her lawyer is also representing a litigation adversary, even with respect to a matter wholly unrelated to the one for which counsel was retained, cannot long be expected to sustain the level of confidence and trust in counsel that is one of the foundations of the professional relationship. All legal technicalities aside, few if any clients would be willing to suffer the prospect of their attorney continuing to represent them under such circumstances.'" (Ibid.)
The Charlisse C. court noted that the case before it was a successive representation case, and the juvenile court had applied an incorrect legal standard in disqualifying CLC. (Charlisse C., supra, 45 Cal.4th at p. 160.) Charlisse C. explained that Castro and other cases relied on by the juvenile court were simultaneous representation cases, and thus were necessarily more stringent than those required in a successive representation case such as Charlisse C. The court explained that "the factors emphasized in Castro … are not necessarily dispositive in this case, and the juvenile court's finding that CLC did not observe some of the safeguards Castro … discussed does not automatically warrant disqualification." (Id. at pp. 160‒161.)
The Charlisse C. court went on to set forth the proper standard in successive representation cases. First, the court must determine whether a "substantial relationship" between the prior and current representations is present. (Charlisse C., supra, 45 Cal.4th at p. 161.) If such a relationship exists, there is a disqualifying conflict of interest for the attorney who represented the party in the first action. However, when the attorney works for a law firm, the question is whether the "vicarious disqualification" rule requires disqualification of other attorneys in the law office. In private law firms, disqualification of one attorney requires disqualification of the attorney's entire law firm." (Ibid.) Public law offices, however, have been treated differently by the courts as public sector lawyers do not have a financial interest in the matters on which they work nor accept fees and as a result have less, if any, incentive to breach client confidences or financial incentive to favor one client over another. (Id. at pp. 162‒163.) The question in a case where an attorney from a public law office seeks to represent a client in an adverse position to a former client of another attorney from the office, is "whether the public law office has adequately protected, and will continue to adequately protect, the former client's confidences through timely, appropriate, and effective screening measures and/or structural safeguards." (Id. at pp. 162, 165.) As the juvenile court in Charlisse C. did not make such a determination, the Supreme Court remanded the matter for rehearing for it to apply the correct standard. (Id. at p. 165.) The Supreme Court also concluded that CLC bore the burden to make the required showing "because it has unique access to the relevant information." (Id. at p. 166.)
C. Analysis
Mother contends the present case is both a simultaneous representation and successive representation case, and as such the public defender's office must automatically be disqualified, or, in the alternative, that the public defender's office had the burden to prove it had in place measures as stringent as those described in Castro. We reject mother's claims.
First, we disagree that automatic disqualification was required. Mother cites Charlisse C. and several California Rules of Professional Conduct, as well as provisions of the Business and Professions Code and Welfare and Institutions Code in support of this claim but does not, in arguing for automatic disqualification, squarely address the fact that the same attorney did not represent both Autumn and mother or why the court would not need to conduct a determination of whether the vicarious disqualification rule should apply. As the public defender's office is a public law office, rather than a private law firm, a fact mother appears to concede in her briefing, Charlisse C., as well as Castro, indicate the rule of vicarious disqualification does not automatically apply. (Charlisse C., supra, 45 Cal.4th at pp. 161‒162; Castro, supra, 232 Cal.App.3d at p. 1441.) Thus, we do not see a basis for minor's counsel to be automatically disqualified simply because another deputy public defender appeared with mother at one hearing without further analysis. As such, mother's claim that automatic disqualification was required fails.
On the issue of vicarious disqualification, which mother presents as an alternative claim to her automatic disqualification claim, mother contends this is a simultaneous representation case requiring the juvenile court to require the public defender's office to make a showing equal to that made in Castro. We also reject this claim. While mother is correct that for a short period, including one court appearance the public defender's office represented both mother in her criminal case and Autumn in the dependency case, the present case is a far cry from Castro where the entity was seeking to systematically represent adverse parties in the action for the entirety of the proceedings. Rather, it appears the public defender's office in the present case seeks to avoid simultaneous representation of parties, as minor's counsel represented that the fact a deputy public defender appeared with mother at all was because the criminal case somehow evaded the conflict check process the public defender's office had in place. Here, once the potential conflict was discovered, the public defender's office promptly conflicted out of mother's criminal case and did not by any means seek to maintain simultaneous representation beyond that. Mother has not convinced us the more "stringent" standard set forth in Castro-basically that the office is structured in a way for the purpose of simultaneously representing parties in the same proceedings without conflict-applies to the factual scenario here.
The policy discussed in Charlisse C. supports our conclusion. As the high court explained in Charlisse C., the duty implicated in a simultaneous representation case is the duty of loyalty. (Charlisse C., supra, 45 Cal.4th at p. 160.) The Charlisse C. court's explanation as to why the standard for disqualification in a simultaneous representation case must be more stringent than in a successive representation case was the effect of the representation on the client's confidence and trust. (Ibid.) Here, there is simply no evidence the circumstances effected a breach of the duty of loyalty in either mother's or Autumn's relationships with their attorneys. First, any potential breach of the public defender's duty of loyalty to mother in her criminal case was mitigated by his decision to conflict out of that case. Further, there is no evidence that Autumn knew a deputy public defender appeared with mother in her criminal case nor that she, an infant, could appreciate the alleged potential breach of the duty of loyalty to the extent her trust and confidence could be in any way affected by the very short period of time the public defender's office represented both she and mother. Again, the deputy public defender's act of conflicting out of the criminal case alleviated any potential breach of the duty of loyalty. We disagree with mother's contention that Castro is analogous to the present case and reject her argument that there were more stringent requirements than those set forth by Charlisse C. We conclude under the circumstances of this case that this case is more akin to a successive representation case such as Charlisse C. and therefore the test set forth by the Supreme Court in Charlisse C., not Castro, is the proper analysis.
We reject mother's contention that Autumn's age has no relevance. To cite this contention, she points out that in Charlisse C., the child was six days old. Charlisse C. is not persuasive authority for this point because it was not a simultaneous representation case. We do not mean to suggest no duty of loyalty is afforded an infant by their attorney. We simply mean that in the context of the facts of this case, mother's contention minor's expectation of loyalty was implicated by the public defender's office appearing with mother for one hearing, the alleged breach is merely hypothetical and by itself should not result in reversal.
Applying Charlisse C. to the present case, we first note as a threshold matter, it does not appear the parties disagree there is a substantial relationship between the representations as both the criminal case and dependency case appear to arise from the same facts. Thus, the attorney who represented mother in her criminal case would have a disqualifying conflict of interest from representing minor in the dependency proceeding. The question then is whether the rule of vicarious disqualification requires the court to disqualify minor's counsel, another deputy public defender. (Charlisse C., supra, 45 Cal.4th at p. 161.) As the public defender's office is a public law office, the precise question is whether the juvenile court could reasonably conclude the public defender's office has adequately protected, and will continue to adequately protect, mother's confidences through timely, appropriate, and effective screening measures and/or structural safeguards to justify not applying the rule of vicarious disqualification. (See id. at p. 162.)
Here, mother's counsel cited Charlisse C. as the controlling case in this scenario, and the court made a thorough inquiry into the factual scenario of whether minor's counsel had knowledge about mother's criminal case. Minor's counsel was adamant she had not obtained any confidential information about mother's criminal case, would not seek it, and could request the information be sequestered so that she did not obtain any such information going forward. We conclude the court could reasonably infer from minor's counsel's statements that proper safeguards were in place and would be kept in place so that minor's counsel did not obtain any confidential information from mother's criminal case.
Mother contends minor's counsel's "individual, unsworn statements … are not sufficient evidence that mother's confidences will be, or have been, scrupulously protected or that the dual representation has not infected her representation of Autumn" because minor's counsel's statements "are not evidence at all."
Notably, mother's counsel did not object to minor's counsel's statements as being unreliable or that the court legally could not rely on them to make its determination. His objection below was solely that the substance of her statements did not meet the standard of proof, not that procedurally they could not be considered. Substantively, the trial court found that minor's counsel's statements met the burden of proof, and as we stated above, we conclude this was reasonable. To the extent that mother argues the court could not rely on minor's counsel's statements because they were not sworn, we find this argument forfeited. Had mother made the objection she makes here, the juvenile court could have placed minor's counsel under oath at the time of the objection. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 222 [raising specific theory for a claim before trial court is important so that the trial court may consider the claim below; "A party may not assert theories on appeal which were not raised in the trial court."].)
In any event, we disagree with mother's suggestion that the court could not rely on minor's counsel's statements she made as an officer of the court to determine the matter here. Charlisse C. sets forth no such requirement that sworn declarations were required. In Charlisse C., the court noted that neither CLC attorney had submitted a declaration with factual information relevant to the disqualification motion. In so noting, the court stated in a footnote that" '[s]worn representations have been held to be effective in assuring the court that insulation of prior confidential communications from present representation has occurred and will continue to occur.'" (Charlisse C., supra, 45 Cal.4th at p. 167, fn. 14.) The court also noted, however, "In noting information that is absent from this record, we are not holding that the missing information is either necessary or determinative in every case. Nor are we holding that the evidence here regarding CLC's structure, its structural safeguards, and its general compliance or noncompliance with those safeguards, is not relevant or significant. We are simply identifying information that may be important in determining whether the former client's confidential information has been, and will continue to be, adequately protected. As case law suggests, other information-such as the former attorney's supervisorial duties-may also be important." (Id. at p. 167, fn. 15.) Taking these comments together, we conclude that the Charlisse C. court was indicating that while sworn declarations may be appropriate and relied upon in certain scenarios, what is sufficient to make the showing that confidences will be protected is dependent upon the facts and circumstances of each individual case.
Further, the cases mother cites to support her contention that the court could not rely on minor's counsel's statements-In re Zeth S. (2003) 31 Cal.4th 396, 413‒414, footnote 11 [noting that a statement in an unsworn letter brief submitted by a minor's appellate counsel did not constitute evidence to justify appellate consideration of postjudgment actions] and In re B.S. (2012) 209 Cal.App.4th 246, 253 [in an appeal from a juvenile court's order denying placement with a parent at the 12-month review hearing, argument from counsel did not constitute evidence of a bond between the parent and child]-are not controlling or persuasive here, as they are distinguishable on their facts and did not address the issue presented by this appeal.
Applying the above principles, we find no error. Here, mother's counsel represented that mother had had a 30-minute conversation with the deputy public defender in the criminal case and the same public defender sent a text message to mother's counsel. The parties appear to agree the deputy public defender in the criminal case made no other appearances with mother and had no other conversations with her. In response, minor's counsel related information from her own personal knowledge, which was that she did not have any information pertaining to the criminal case and her intentions moving forward with regard to any potential confidential information known by the public defender in the criminal case was to ask that it be sequestered. We conclude the court could reasonably credit minor's counsel's representations given the information before it.
For the reasons set forth above, we find the juvenile court's factual findings were supported by sufficient evidence, and that it did not misapply the law or abuse its discretion. We find no error.
II. Sufficiency of the Evidence-Removal Findings
Mother argues the juvenile court's removal findings and orders are not supported by sufficient evidence. We disagree.
A dependent child shall not be taken from the physical custody of his or her parents unless the juvenile court finds clear and convincing evidence that, as relevant here: (1) "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home"; and (2) "there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's … physical custody." (§ 361, subd. (c)(1).)
When determining whether a child will be in substantial danger if permitted to remain in the parent's physical custody, the juvenile court must consider "not only the parent's past conduct, but also current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re I.R. (2021) 61 Cal.App.5th 510, 520.)
We review sufficiency of the evidence challenges to the juvenile court's dispositional findings for substantial evidence, while accounting for the clear and convincing standard of proof. (In re V.L. (2020) 54 Cal.App.5th 147, 155.) The question before us is" 'whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.'" (Ibid.) We" 'view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.'" (Ibid.) We do not substitute our judgment for that of the juvenile court nor" 'reweigh the evidence, evaluate the credibility of witnesses or indulge in inferences contrary to the findings of the trial court.' [Citation.] Instead we' "accept[] the evidence most favorable to the order as true and discard [] the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." '" (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1167.)
We note this is a close case, but in applying the deferential standard we are required to apply as a reviewing court, we conclude, bearing in mind the clear and convincing evidence standard, the juvenile court's finding Autumn's physical well-being was in substantial danger if she were to remain in mother's care was supported by substantial evidence.
Here, mother's admission during the investigation that she had previously abused prescription medication; the previous substantiated referral for general neglect regarding substance abuse, including the use of Tylenol 3, which she was currently taking; the unexplained positive test for Oxycodone and Oxymorphone on May 14, 2021, substances not prescribed to mother; and her testimony at the disposition hearing that, contrary to her previous statement to the social worker, she did not previously struggle with prescription medication abuse, taken together, support a reasonable inference mother had a substance abuse problem that had not been fully ameliorated at the time of the disposition hearing. Thus, the juvenile court's finding of risk of substantial danger to Autumn was supported by substantial evidence.
We acknowledge the record shows mother only tested positive for substances not prescribed to her once, four months prior to the disposition hearing. The juvenile court, however, could have reasonably concluded Autumn was still at risk, in light of mother's insistence she had not used the substances and her contradictory statements about whether she had had a problem with substance abuse in the past. The court could have reasonably concluded mother was still in denial about her problem and thus could not be expected to safely care for Autumn. We note substance abuse is of particular risk to young children of "tender years" where the absence of adequate supervision and care poses an inherent risk to physical health and safety. (See In re Drake M. (2012) 211 Cal.App.4th 754, 766‒767 [creating a presumption in jurisdiction cases where a finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of harm].)
On appeal mother points out she testified the results for Oxycodone and Oxymorphone could have been due to a "mix up at the lab." In support of this theory, mother testified as to the May 14 test results that her birthdate was one day off and her zip code was wrong. These are minor errors that the court was not compelled to accept as reasons why the results were wrong. Further, we note the date mother was observed to be falling asleep at a visit causing a safety concern with Autumn was May 14, 2021, the date she also tested positive for Oxycodone and Oxymorphone, the unexplained unprescribed medications, further supporting the juvenile court's implicit rejection of mother's testimony she did not have a substance abuse problem.
We also conclude that against this backdrop, the court's finding there were no reasonable means to protect Autumn without removal was supported by substantial evidence. Mother offers several alternatives she contends the juvenile court should have considered including ordering continued compliance with drug testing; continued participation in her substance abuse treatment program, counseling, and psychiatric and medical treatment; unannounced social worker visits; and mother's safety plan utilizing mother's support network. We acknowledge mother was cooperative with the department and was participating in services, including substance abuse services. However, the court could have concluded continued use of these services at the time of the dispositional hearing would not be adequate to protect Autumn at that time. Mother had not completed her substance abuse services and had no explanation for the positive test results for Oxycodone and Oxymorphone. Mother's utilization of other care providers in her support network was not a reasonable means of prevention in light of mother's denial she had taken any medication that was not prescribed for her. The court could reasonably conclude that mother would not appropriately plan for the care of Autumn in the case of her taking medication not prescribed to her because she had not even admitted doing so.
To the extent that mother argues the court erred by not discussing reasonable alternatives to removal on the record, we reject this claim. The department reported on all of the services it had offered mother, and the social worker testified there were still concerns about mother's medication use. Mother had the opportunity to cross-examine the social worker regarding further alternatives to removal and minor's counsel asked the social worker about mother's safety plan if Autumn were to be released to her. Mother, too, presented affirmative evidence that she had a safety plan in place with regard to her medical diagnoses which would ensure Autumn's safety, but did not expound upon how she could ensure Autumn's safety with regard to the suspected medication abuse; rather, she testified it was not a problem. The court expressly mentioned mother's safety plan and noted that her support people were not on a set schedule and thus had not shown that this could adequately protect Autumn. We find the court considered this evidence and weighed it accordingly, ultimately concluding the evidence was not sufficient to support a finding mother could protect Autumn in light of her history and her circumstances at the time of the disposition hearing.
DISPOSITION
The juvenile court's August 17, 2021 denial of mother's request to disqualify minor's counsel and the September 2, 2021 dispositional findings and orders are affirmed.
[*] Before Levy, Acting P. J., Peña, J. and DeSantos, J.