Filed 5/20/22 In re S.L. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re S.L., a Person Coming Under the H048652
Juvenile Court Law. (Santa Clara County
Super. Ct. No. 19JD025794)
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN'S SERVICES,
Plaintiff and Respondent,
v.
D.A.,
Defendant and Appellant.
The juvenile court terminated dependency jurisdiction over three children of D.A.
(father) and E.L. (mother) after about one year of family maintenance services and, as
relevant here, awarded mother sole legal and physical custody of the youngest son, S.L.
(minor). Jurisdiction was based on the children suffering serious emotional damage as a
result of the conduct of both parents related to an acrimonious divorce and custody
dispute. Father argues on appeal that the juvenile court erred by: terminating jurisdiction
despite evidence that minor was in a fragile emotional state; not protecting minor’s right
to attend and be heard at hearings; and not appointing separate counsel for the three
children when a conflict of interest arose. He also contends minor’s trial counsel
provided ineffective assistance. Finding no prejudicial error, we will affirm the
judgment.
I. JUVENILE COURT PROCEEDINGS
Mother and father have three children: minor, born in 2009; Y.A., born in 2007;
and A.A., born in 2006. The parents were married in 2005, separated in 2011, and
divorced in 2013. Physical custody of the children shifted between the parents over the
next several years, and each parent accused the other of physical abuse.
A. DEPENDENCY PETITION
The Santa Clara County Department of Family and Children’s Services
(Department) filed a juvenile dependency petition in May 2019 alleging all three children
were suffering or were at substantial risk of suffering serious emotional damage as a
result of the conduct of mother and father. (Welf. & Inst. Code, § 300, subd. (c);
unspecified statutory references are to this Code.) As later amended, the petition alleged
the children needed juvenile court intervention because mother verbally abused them “on
a daily basis,” including by swearing at them and threatening physical harm. The petition
alleged father had convinced Y.A. to install hidden cameras in mother’s house to record
the mother’s behavior. The petition alleged both parents disparaged one another in an
attempt to alienate the children. The parents also “expos[ed] the children to their eight-
year highly contentious custody battle and their individual verbal and emotional abuse
has already caused the children emotional damage.” The children were living with
mother when the dependency proceedings were initiated.
B. DEPARTMENT REPORTS AND JURISDICTION HEARING
The Department prepared multiple reports and addenda in the six months between
the filing of the petition and the jurisdiction hearing in November 2019. The jurisdiction
and disposition report noted the dependency proceedings were initiated as a result of a
police investigation into a video posted on YouTube with footage apparently taken from
a hidden camera Y.A. installed in mother’s house. Mother is recorded on the video
yelling at and belittling the children. A Department report states mother made the
following comments in the video, among others: “ ‘get over here before I slap in your
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damn face,’ ” “ ‘I fucking hate your guts,’ ” and “ ‘I’m bout to beat the FUCK out of you
if you don’t stop.’ ” (Errors and capitalization in original.) Father “admitted to involving
[Y.A.] with recording” mother. The report noted “it appears [father] instructed [Y.A.] to
plant the camera in the house in order to manipulate the child custody hearings where
[father] lost full custody of the children.” The children were suffering from their parents’
behavior. They “displayed additional signs of an emotional trauma through fighting with
peers as well as fighting with their parents.” The children were “experiencing conflicting
emotions about their parents.”
The addenda detailed the parents’ progress in the months leading up to the
jurisdiction hearing. Mother consistently took responsibility for her actions and
participated in the services recommended by the Department to address “parenting,
parent coaching, verbal abuse, and psychological health with the mother and children.”
Mother remained distrustful of father and blamed him for some of the children’s poor
behavior. Regarding father, the report noted that he seemed committed to taking “steps
to resolve the concerns held by the Department,” but had “limited insight to his role and
contribution to the current case, and how his words, thoughts, actions and choices [were]
continuing to impact the children.” There was also a roughly two-month period during
which father did not respond to repeated attempts by the assigned social worker to reach
him.
As for the children, A.A. remained with mother throughout the proceedings and
refused even to visit with father. Early in the proceedings, she engaged in bullying
behaviors toward minor. But both her behavior and her emotional state improved over
time. Y.A. acted out consistently throughout the proceedings, including getting in trouble
at school, skipping school, and bullying minor. That bullying activity included an
incident during which Y.A. cut off chunks of minor’s hair (which was particularly
significant in light of the cultural significance of hair in the family’s Tongan heritage).
Minor was severely emotionally impacted by both his parents’ and his siblings’ behavior.
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Mother reported minor was consistently stressed and anxious. Minor reported feeling
unsafe at home because of Y.A., and expressed interest in Y.A. having overnight visits
with father to separate minor from Y.A.
Parents waived trial, admitted the petition allegations, and submitted to
jurisdiction in November 2019. The court granted the Department’s motion to continue
the disposition hearing to give the Department more time to assess the possibility of
placing Y.A. with father to separate him from minor.
C. DEPARTMENT ADDENDA AND DISPOSITION HEARINGS
The Department prepared two addenda in preparation for the disposition hearing.
The first noted Y.A. continued acting out and was going to be prescribed Adderal by his
doctor. Mother remained engaged in the services facilitated by the Department, including
individual therapy where she was learning to “move on from things and not carry that
‘extra weight.’ ” Father had not yet enrolled into the services the Department
recommended he complete prior to being considered for placement of Y.A. Father’s
visits with Y.A. and minor were positive. He met with each son separately for one hour,
once a week.
The second addendum recounted an incident during which Y.A. “jabb[ed] a large
kitchen knife toward[] minor” at mother’s house. Y.A. reportedly expressed no remorse
for the incident when confronted about it by mother. He claimed it was merely a joke.
Minor told the social worker he did not want to live in the same house as Y.A. anymore.
The parties submitted to a disposition of family maintenance services and
continued placement of minor and A.A. with mother in January 2020. As to Y.A., the
juvenile court granted the Department’s request for a further continuance to allow the
Department to determine an alternative placement for Y.A. At the continued disposition
hearing for Y.A. in March 2020, the juvenile court ordered Y.A. to be placed with a
maternal aunt. After father took steps to engage with services recommended by the
Department, the juvenile court placed Y.A. with father with family maintenance services.
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D. FAMILY MAINTENANCE PERIOD
The six-month review report filed in June 2020 noted progress by both parents and
positive developments for A.A. and minor. Mother was employed, maintained consistent
contact with the Department, and was engaged in individual therapy. Father had attended
a nurturing parent seminar, was seeing an individual therapist through Veteran’s Affairs,
and had started attending a different parenting program. A.A. and minor were both
healthy and doing well in school. Minor still struggled with anxiety, but mother engaged
in healthy behaviors like daily bike rides to help him. The Department recommended the
juvenile court terminate jurisdiction over A.A. and minor because the family had
addressed the concerns that led to the dependency petition. A.A. and minor told the
social worker they felt safe in mother’s care. Mother had gained “parenting skills and
understanding from the classes that she has attended in order to ensure her children’s
safety and well-being while in her care.” Though father had been in only “sporadic and
recent communication” with the Department and still had a limited ability to
cooperatively parent with mother, he was engaging in services and had “made some
progress to the best of his ability.” The report further noted that minor and A.A. would
remain eligible for individual therapy and additional services through their health
insurance, even if jurisdiction was terminated.
An addendum filed in September 2020 noted that the parents and Department had
agreed to allow minor to stay with father, with an agreement that he would return to
mother’s care after one month. Minor expressed a desire to have a “ ‘break from [his]
mom.’ ” Minor had been misbehaving, and the parents blamed one another for the
misbehavior. There was an incident before minor went to stay with his father in which
minor and mother had a disagreement and minor left the house. Mother told the social
worker she told minor to “ ‘leave and go and take space.’ ” Minor told the social worker
he interpreted that as mother kicking him out, and confirmed that he sent father a text
message stating that mother kicked him out.
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Minor oscillated between expressing anger toward his father and father’s
girlfriend, and expressing a desire that his father gain custody over him. Minor
confirmed with the social worker that mother did not physically abuse him, but
complained that she cursed sometimes. Minor asked the social worker whether the
parents could have joint custody. Minor acknowledged sending his father a text message
threatening to overdose on pills, but stated it was a ploy to try to force his father to break
up with his girlfriend. The Department continued to recommend termination of
jurisdiction over minor and A.A., with legal and physical custody to mother and
unsupervised visitation by father. The social worker acknowledged in the addendum that
due to the family dynamics and history, the “parents will continue to have a volatile
relationship as the father is not willing to co-parent and the mother does not trust the
father.” But jurisdiction was no longer necessary because the “parents and children
[were] connected to services, resources[,] and are engaging in those services.” In a
separate report for Y.A., the Department recommended termination of jurisdiction with
legal and physical custody to father and unsupervised visitation to mother.
E. JURISDICTION TERMINATED
The juvenile court conducted a contested family maintenance review over three
days in October 2020. All hearings were conducted remotely via video due to the Covid-
19 pandemic. The children were not present at the first two sessions. Minor and Y.A.
were present for the third session.
The assigned social worker testified as an expert in risk assessment, safety
planning, child development, and provision of services. The social worker was very
familiar with the family, having been assigned to the case about 10 months before the
status review hearing. The social worker noted mother had engaged with the Department
throughout the proceedings and had “done a lot of work on her case plan.” Mother
completed individual therapy through the Department and had enrolled in additional
individual therapy on her own. She had started family therapy with minor. The social
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worker opined that mother’s parenting ability “most definitely ha[d] improved.” Mother
was able to find resources for her family and to reach out for support when necessary.
The social worker cited mother’s recent decision to allow minor to stay with father for
one month as demonstrating mother’s growth and willingness to co-parent with father.
The social worker contrasted mother’s early behaviors of cursing and yelling at the
children with healthier behaviors she learned during the dependency such as asking minor
to “go and take space” when tensions arose.
The social worker noted that father had completed a parenting class. Father was
reportedly attending individual therapy through Veteran’s Affairs, but had repeatedly
refused to sign a release to allow the social worker to contact the therapist. Father had
attended no children and family team meetings for minor, whereas mother had attended
all of them.
The social worker acknowledged that there had been two very recent referrals
regarding alleged abuse by mother, which were based on minor’s allegation that mother
kicked him out of the house. One had already been closed due to insufficient
information, and the other was still being investigated. Mother denied abusing the
children, A.A. told the social worker there was no abuse occurring in the home, and
minor told the social worker that he was not being physically abused by mother. The
social worker stated that during home visits mother and minor were usually “very
cordial,” with minor sitting next to mother, hugging her, and kissing her. Regarding
A.A.’s credibility, the social worker reported that she had found A.A. to be “very honest
and forthcoming” throughout the proceedings.
The social worker acknowledged minor’s recent emotional difficulties. She
believed that minor was “caught up between both of the parents” and that it was
“stressing him out.” But the social worker believed that his mental health needs were
being addressed by his therapist and family specialist. She noted that services could
continue even if jurisdiction was terminated, including family therapy. The social worker
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recommended that mother receive sole legal and physical custody of minor because
mother had demonstrated to the Department that she had addressed the issues that led to
jurisdiction and father had not demonstrated to the Department that he was able to meet
the needs of his children.
Father testified that he wanted minor to remain with him and that minor had been
thriving during the recent days minor was in his care. He stated minor had been
attending all his virtual school classes and was working to make up missed school
assignments.
The juvenile court followed the Department’s recommendation to terminate
jurisdiction as to all three children. Regarding custody, the court granted sole legal and
physical custody over A.A. and minor to mother and granted sole legal and physical
custody of Y.A. to father. For all three children, the court ordered unsupervised visitation
to the non-custodial parent. The court found that father had not met his burden of
showing by a preponderance of the evidence that the conditions which justified the initial
assumption of jurisdiction still existed. Mother had completed all elements of her case
plan other than the family therapy that was not available during part of the pandemic-
related shelter in place period. The court credited the social worker’s testimony about
improvements in mother’s parenting, as well as A.A.’s statements to the social worker
that things were going well in mother’s care. Regarding the incident during which minor
claimed mother had kicked him out of the house, the court found that mother “allowed
[minor] space during the incident,” “allowed him to have time at his father’s[,] and has
been encouraging of that relationship.” The court stated it was difficult to determine how
much father had changed because he refused to sign a release to allow the social worker
to talk to his individual therapist, noting father did not even “authorize the therapist to
confirm participation but not go into the content” of sessions. Father and Y.A. were not
enrolled in family therapy despite it being offered to them. The court also identified a
“risk ... that the father [was] engaging in alienation against the mother with the boys” and
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noted a correlation between minor’s changed attitude toward mother and the increased
frequency of his visits with father. Though the court found the possibility of alienation
was not severe enough to keep the case open, it did consider the issue in reaching its
placement decisions for minor and A.A.
We note that after the juvenile court explained its decision, the children’s counsel
informed the court that minor and Y.A. had at some point lost their connection to the
virtual hearing and were no longer present. Father informed the court that the boys’
computer had died; the boys then joined father at his computer. The boys expressed
confusion, with Y.A. explaining that they missed part of the hearing. It is unfortunate
here that the juvenile court elected not to “go back and read it all again” after apologizing
“that we lost you and that you lost your connection.” The court summarized its decision,
but minor expressed displeasure with it, stating his mother’s house was not a safe
environment because she still yelled and cussed at him. Minor’s counsel acknowledged
minor’s comments, expressed “concerns about why this is coming up right now from my
client,” and nonetheless confirmed the view that the court’s orders were in minor’s best
interest.
II. DISCUSSION
A. TERMINATION OF JURISDICTION
Father contends the juvenile court erred by concluding that continued jurisdiction
was unnecessary. At the review hearing, the juvenile court was charged with determining
whether continued supervision was necessary. (§ 364, subd. (c).) Termination is
warranted unless a party “establishes by a preponderance of evidence that the conditions
still exist which would justify initial assumption of jurisdiction under Section 300, or that
those conditions are likely to exist if supervision is withdrawn.” (Ibid.) Because father
bore the burden of proof and the juvenile court concluded he did not meet that burden, on
appeal the standard of review is whether undisputed evidence compels a finding in
father’s favor as a matter of law. (In re N.O. (2019) 31 Cal.App.5th 899, 925.) Under
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that standard, it is not enough merely to cite competing evidence that was presented to the
juvenile court; reversal is warranted only where the undisputed facts lead to but one
conclusion. (Id. at pp. 925–926.)
The juvenile court here was presented with conflicting evidence, much of it
supporting the finding that the conditions which supported jurisdiction no longer existed.
As father acknowledges, the social worker testified that mother had improved her
parenting skills; that minor and the other children would still have access to therapy
through their health insurance even if the court terminated jurisdiction; that minor and
mother appeared to get along well during the social worker’s home visits; and that A.A.,
whom the social worker found credible and truthful, told the social worker she and minor
were not being abused by mother. Further, the social worker reported in one of the status
review addenda that minor told the social worker mother did not physically abuse him,
though he did complain that she cursed at him at times. The trial court was entitled to
credit all of that evidence.
In light of the foregoing, father cannot meet his burden to show that the trial court
erred as a matter of law. Father points to various pieces of evidence he contends were
undisputed, but many of those facts were actually in dispute. For example, he argues it is
“undisputed that in the two months before dismissal, [minor] repeatedly reported Mother
abused him” including reporting that mother had kicked minor out of the house. But
minor’s reports of verbal abuse were not the only evidence before the juvenile court on
that issue. Mother denied abusing minor, A.A. corroborated mother’s position, and the
social worker testified that mother and minor appeared to get along well when the social
worker made home visits. Mother told the social worker she never kicked minor out of
the house and merely told him to “go take space” during an argument, which was a safe
word that they had previously agreed upon to deescalate arguments. The juvenile court
resolved that conflicting evidence, finding that “the incident from September does not
show that [minor] is not safe with the mother. She allowed [minor] space during the
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incident in September. She has allowed him to have time at his father’s and has been
encouraging of that relationship.”
Father argues the juvenile court “failed to consider” certain evidence, including
the fact that A.A. had been aligned with mother throughout the proceedings and that there
were similarities between the escalating behaviors of minor and Y.A. We presume the
juvenile court considered all competent evidence before it, absent a showing by a party
that the court failed to do so. (See Serrano v. Workmen’s Compensation Appeals Bd.
(1971) 16 Cal.App.3d 787, 791 [“[I]n the absence of any contrary evidence we are
entitled to presume that the trial court ... properly followed established law.”].) Merely
noting that the juvenile court did not discuss every piece of evidence when explaining its
decision does not defeat that presumption. And the juvenile court was entitled to credit
the social worker’s testimony that A.A. had been honest. (In re Merrick V. (2004)
122 Cal.App.4th 235, 254 [“We do not second-guess the court’s credibility calls or
reweigh the evidence.”].)
We acknowledge it is undisputed that minor was in a fragile emotional state when
the juvenile court dismissed jurisdiction. But the cause of that emotional state was
disputed. Though father blames mother and contends she “could not cope” with minor’s
struggles, there were other sources of stress for minor including the dependency
proceedings themselves and coming to terms with father having a new girlfriend. The
court could continue jurisdiction only on a finding that conditions still existed to justify
the initial assumption of jurisdiction. Here, those conditions had been daily verbal abuse
and threats of violence by mother, and alienating actions by father that included
surveillance by facilitating the installation of a secret camera in mother’s home. The
court heard evidence that those conditions had improved, and the social worker made
clear that minor would still have access to therapy and other services even if jurisdiction
terminated. The juvenile court did not err in terminating jurisdiction, even though it was
apparent that minor would need ongoing help with his emotional state.
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B. MINOR’S RIGHT TO BE PRESENT
Father contends the juvenile court erred by failing to ensure that minor had been
properly notified of his right to attend and participate in the family maintenance review
hearings. Section 349 states that minors who are the subject of dependency petitions
have a right to be present at juvenile court hearings, and subdivision (d) of that section
provides that if a “minor is 10 years of age or older and he or she is not present at the
hearing, the court shall determine whether the minor was properly notified of his or her
right to attend the hearing and inquire whether the minor was given an opportunity to
attend.” But 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.) “The purpose of this [forfeiture] rule is to encourage parties to
bring errors to the attention of the trial court, so that they may be corrected.” (Ibid.)
Father did not object in the juvenile court to minor’s absence at the first two
hearings. Had father done so, the juvenile court could have inquired about whether minor
had been notified of his right and opportunity to attend the hearings, and any deficiency
could have been timely corrected. Minor was also in father’s care during the relevant
proceedings, such that father was presumably aware of minor’s whereabouts and could
have raised the issue had he believed minor was unaware of his rights with respect to the
hearings. Having failed to object, father forfeited the ability to challenge on appeal the
juvenile court’s compliance with section 349, subdivision (d).
Father contends arguments of his trial counsel during the hearing preserved the
section 349 argument. He cites his trial counsel’s arguments responding to hearsay
objections during father’s testimony. For instance, father’s trial counsel argued minor’s
“views ought to be heard, and at least as of the last time we were present, a social worker
hadn’t specifically talked to him.” But father’s counsel never cited section 349, and we
do not find the broad statement that minor’s views “ought to be heard” sufficiently
specific to preserve the procedural argument father now raises.
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Father urges us to exercise our discretion to address the issue, notwithstanding any
forfeiture. But our “discretion to excuse forfeiture should be exercised rarely and only in
cases presenting an important legal issue.” (In re S.B., supra, 32 Cal.4th at p. 1293.)
Here, minor was represented by counsel at all three hearings, minor attended the third
hearing (except for the portion during which he lost remote access), and minor was in
father’s custody throughout the three hearings at issue. We do not find the circumstances
here present an exception for father’s forfeiture.
C. CONFLICT OF INTEREST
Father contends the trial court erred by not disqualifying the attorney who
represented the three children, after an actual conflict developed between the interests of
minor and A.A. Despite father’s failure to object, an objection was not required to
preserve a conflict of interest argument in this context. (See People v. Bonin (1989)
47 Cal.3d 808, 839.) Because the facts are undisputed, we review the issue de novo. (In
re Zamer G. (2007) 153 Cal.App.4th 1253, 1263 (Zamer G.).)
1. Background
A single attorney represented all three children. After the juvenile court heard
testimony at the family maintenance review, counsel for each party addressed the court.
Counsel for the children argued for each child separately. (We focus on statements about
minor and A.A. because counsel’s statements about Y.A. are not material to the issues
here.) Regarding A.A., counsel agreed with the Department’s recommendation and
informed the court of A.A.’s stated interest to remain with mother. As for minor, counsel
presented minor’s “stated interest right now is that he wants to stay with his father.” But
counsel argued that the Department’s recommendation that jurisdiction be terminated
with sole legal and physical custody to mother was in minor’s best interests. Counsel
noted minor’s stated preference for each parent’s custody had gone back and forth
throughout the proceedings. She stated a concern that father might be manipulating
minor, and also noted that minor’s escalating behaviors correlated temporally with him
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spending increased time with father. Counsel acknowledged that neither parent was
perfect, but contended that both had improved their parenting adequately to terminate
jurisdiction. Mother had demonstrated a much higher level of engagement with service
providers throughout the dependency proceedings, leaving counsel with no doubt she
could continue to do so even without Department oversite. Father, by contrast, had been
unwilling to consent to allow his service providers to speak with the social worker and
“we don’t really know what’s happening in the home and what is being said to the
children.”
2. Analysis
Minors in dependency proceedings have a right to competent appointed counsel.
(§§ 317, subd. (c); 317.5.) While counsel must “interview the child to determine the
child’s wishes and ... shall advise the court of the child’s wishes” (§ 317, subd. (e)(2)),
counsel’s duty is to represent the child’s best interests. (Id., subd. (e)(1).) One attorney
may represent multiple siblings so long as there is no actual conflict of interest among
them. (In re Celine R. (2003) 31 Cal.4th 45, 58 (Celine R.); Cal. Rules of Court, rule
5.660(c)(1)(A) (Rule 5.660).) Separate attorneys must be appointed when an actual
conflict develops between the siblings’ interests or “if circumstances specific to the
case—not just the potential for conflict that inheres in all multisibling dependency
cases—present a reasonable likelihood an actual conflict will arise.” (Celine R., at p. 58.)
An attorney appointed to represent multiple siblings has an “ongoing duty to evaluate the
interests of each sibling and assess whether there is an actual conflict of interest” (Rule
5.660(c)(2)(A)), but the attorney need not withdraw from representing multiple siblings if
“there is merely a reasonable likelihood that an actual conflict of interest will develop.”
(Rule 5.660(c)(2)(C).) Rule 5.660(c)(2)(B) lists circumstances which, “standing alone,
do not necessarily demonstrate an actual conflict of interest,” including situations where
“siblings give different or contradictory accounts of the events, but the issues involved
are not material to the case.” (Rule 5.660(c)(2)(B)(vii).)
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“The difficulty faced by counsel representing minors in dependency
proceedings ... is that the paramount duty of counsel for minors is not zealously to
advocate the client’s objectives, but to advocate for what the lawyer believes to be in the
client’s best interests, even when the lawyer and the client disagree.” (Zamer G., supra,
153 Cal.App.4th at p. 1265.) We agree with the Zamer G. court’s observation that a
conflict of interest in this context “becomes ‘actual’ when an attorney’s duties of loyalty,
confidentiality, and zealous advocacy require the attorney to take or to refrain from
taking some action to serve the ‘best interests’ of one minor client, but the attorney is
unable to do so without violating a duty owed by the attorney to another client; or when
the attorney is unable independently to evaluate the best interests of each minor client
because of the minors’ conflicting interests.” (Id. at p. 1267.)
Here, minor’s and A.A.’s accounts of mother’s behavior in the period leading up
to the family maintenance review hearing were contradictory: minor told the court that
mother was still yelling and cursing at him, whereas A.A. told the social worker neither
she nor minor was being abused by mother. As mother’s verbal abuse was one of the
original bases for jurisdiction, those contradictory accounts were material to the case.
But differing accounts, standing alone, are not necessarily sufficient to show an actual
conflict of interest between the representation of minor and A.A. Counsel was charged
with representing each child’s best interests, and counsel persuasively explained why it
was in both A.A.’s and minor’s best interests for mother to be granted sole legal and
physical custody, notwithstanding minor’s stated preference at the time of the hearing to
remain with father. There is no evidence that counsel disregarded minor’s stated interest
or attempted to keep that preference from the court. To the contrary, minor’s counsel
was clear that her recommendation and minor’s wishes were at odds. After considering
all the evidence, counsel concluded that minor’s and A.A.’s best interests were aligned,
thus there was no actual conflict of interest.
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Even assuming an actual conflict, any error was harmless. “A court should set
aside a judgment due to error in not appointing separate counsel for a child or relieving
conflicted counsel only if it finds a reasonable probability the outcome would have been
different but for the error.” (Celine R., supra, 31 Cal.4th at p. 60.) Father argues separate
counsel would have advocated to continue the dependency proceedings. But given the
evidence supporting the juvenile court’s decision, even if counsel had made such an
argument, we find no reasonable probability the juvenile court would have accepted it
and continued jurisdiction. On the issue of jurisdiction, as we have summarized, the
juvenile court heard evidence supporting a finding that the conditions which initially
justified jurisdiction had improved to the point that jurisdiction could be terminated. On
the issue of placement, mother had been consistently engaged in services throughout the
dependency proceedings, whereas father had demonstrated only limited engagement with
services. Importantly, the juvenile court also had to consider the history of Y.A.’s
aggression toward minor during periods when they lived at the same residence, including
Y.A. cutting off minor’s hair during one incident and threatening minor with a knife
during another.
Because the same prejudice analysis would lead us to conclude that any deficiency
in minor’s counsel’s performance was not prejudicial, father’s ineffective assistance of
1
counsel argument necessarily fails.
III. DISPOSITION
The judgment is affirmed.
1
Minor’s motion requesting judicial notice of a family court order entered almost
a year after the family maintenance review at issue in this appeal is denied as irrelevant.
(Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414, fn. 41.)
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H048652 - In re S.L.; Santa Clara County DFCS v. D.A.