In re Zamer G., B194885 (Cal. App. 7/31/2007), B194885

CourtCalifornia Court of Appeals
Writing for the CourtMosk
PartiesIn re ZAMER G., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S. B., et al., Defendants; CHILDREN'S LAW CENTER OF LOS ANGELES, Objector and Appellant.
Docket NumberB194885
Decision Date31 July 2007

Page 1

In re ZAMER G., et al., Persons Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
S. B., et al., Defendants;
CHILDREN'S LAW CENTER OF LOS ANGELES, Objector and Appellant.
B194885
Court of Appeals of California, Second District, Division Five
Filed July 31, 2007
Certified for Partial Publication*

Appeal from an order of the Superior Court of Los Angeles County, No. CK64128, Stanley Genser, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part, reversed in part.

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

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

Merrill Lee Toole, under appointment by the Court of Appeal, for Minor Zamer G.

Aida Aslanian, under appointment by the Court of Appeal, for Minors Naes. H. and Nay. H.

Christopher Blake, under appointment by the Court of Appeal, for Minors Joshua E. and Justin E.

MOSK, J.


INTRODUCTION

This is one of a number of recent appeals brought by the Children's Law Center of Los Angeles (the Center or CLC), all from orders of the juvenile court disqualifying the Center from representing children in dependency proceedings because of purported conflicts of interest.1 The Center created separate units — referred to as CLC Unit 1, CLC Unit 2 and CLC Unit 3 — to provide, in the same proceeding, legal representation to multiple clients who might have conflicts of interest.2 In In re Jasmine S. (July 25, 2007, B194714) ___ Cal.App.4th ___ (Jasmine), we reversed the juvenile court's orders disqualifying the Center in a case involving the concurrent representation of two clients with potentially adverse interests who were represented by two different units of the Center because there was not an actual conflict of interest.

This case involves the concurrent representation by two of the Center's independent units of five siblings. In the published portion of this opinion, we affirm the juvenile court's order disqualifying CLC Unit 1 from representing four of the siblings because the record contains substantial evidence of an actual conflict among those four siblings.

BACKGROUND3

The Center is a publicly funded, nonprofit law office that represents parties in the Los Angeles County Juvenile Dependency Court when legal services are required under Welfare and Institutions Code section 317.4 The Center formerly was called Dependency Court Legal Services. Pursuant to two agreements, first with the Los Angeles County Board of Supervisors and now with the Administrative Office of the Courts, the Center has been structured into three separate units, designated CLC Units 1, 2, and 3, to permit the Center to provide legal representation to multiple children in the same dependency proceeding, even if the children have conflicting interests.5

This case involves five children (collectively children), who lived with their mother (mother) and Nah. H. (Nah.). The children have three different fathers. Joshua E. and Justin E., aged seven and four respectively, are the children of Joshua E., Sr.; three-year old Zamer G. is the child of Zack G.; Naes. H. (Naes.) and Nay. H. (Nay.), aged one and four months respectively, are the children of Nah.

On June 23, 2006, the Los Angeles Police Department and the Los Angeles County Department of Children and Family Services (DCFS) responded to a report of child abuse at a motel room and found that Zamer had suffered a fractured right femur falling in the bathtub. Zamer was transported to the hospital. When interviewed, Zamer said he was pushed, although he did not say by whom; he later told a DCFS social worker that Nah. "hit him and he went into the tub." Nah. stated that he had been giving Zamer and Justin a bath, and that he had taken Justin out of the bath and into another room when Zamer fell and injured himself trying to get out of the tub. Justin, however, told a DCFS social worker that he was in the bathroom when Zamer fell. The physicians who examined Zamer opined that his injuries were not consistent with the explanation given by Nah., and stated that Zamer also exhibited bruising that "did not look new" and that had occurred prior to Zamer's fall. The physicians could not determine, however, whether the injuries were accidental or caused by abuse.

DCFS detained all of the children. On June 28, 2006, DCFS filed a petition pursuant to section 300 with respect to all five children. The petition alleged, in essence, that Zamer had been hospitalized due to physical abuse by mother and by Nah., and that all of the children were at risk of severe harm. Prior to the detention hearing, DCFS filed an addendum report recommending no reunification services for either mother or Nah. The report recounted a social worker's interview with Justin, in which Justin said that his "daddy" (presumably referring to Nah.) had "whopped [his] brother" (presumably Zamer) with a rolled towel because Zamer had "peed on himself." Justin further stated that he, too, had been hit, and that he had seen "his father" hit his siblings and his mother.

At the detention hearing on June 28, the juvenile court stated its intention to appoint Archana Gupta of CLC Unit 2 to represent all five of the children. Gupta responded, "This is a detention. I'm available to take Zamer. I believe Mr. Feldman [of CLC Unit 1] is taking the other children." The juvenile court appointed Gupta of CLC Unit 2 to represent Zamer only, and appointed Kevin Feldman of CLC Unit 1 to represent Joshua, Justin, Naes. and Nay.

Of the children's three fathers, only Nah. attended the detention hearing. He requested and was granted presumed-father status with respect to Naes. and Nay. DCFS did not then know the whereabouts of Joshua E., Sr., the father of Joshua and Justin.6 Zamer's father, Zack G., was incarcerated in state prison. Mother requested that the children be placed with her sister; Nah. requested that his children, Naes. and Nay., be placed with his mother. Feldman requested that all five children be kept together. The juvenile court ordered DCFS to evaluate the homes of mother's sister and of Nah.'s mother, and whether it would be possible to keep the children together.

Prior to the pretrial resolution conference (PRC) on July 27, Joshua was placed in a foster home; Justin, Naes. and Nay. were placed together in another foster home; Zamer remained hospitalized. DCFS submitted a report setting forth witness statements to substantiate the allegations in the petition. Joshua and Justin both stated that Nah. had struck both of them and Zamer. Justin also stated, "He don't sock [Naes.] because she's a baby, but he pops her real hard." DCFS recommended that no family reunification services be provided to Nah., but reported that mother could benefit from such services.

At the PRC, Gupta, Zamer's CLC Unit 2 attorney, requested an evaluation of Zamer's paternal grandmother for potential placement for Zamer only. The juvenile court granted Gupta's request.

DCFS filed an amended petition on August 25. The amended petition alleged that mother and Nah. had physically abused Joshua and Justin in addition to abusing Zamer. There were no allegations that Naes. or Nay. had been abused. Prior to the PRC on the amended petition, DCFS reported that, although Zamer's grandmother was not yet approved for placement, she was willing to care for Zamer when he was released from the hospital. Joshua's foster parent was not willing to accept Zamer; the foster parent for Justin, Naes. and Nay. was willing to accept Joshua, but had not been consulted about accepting Zamer. DCFS further reported that it could "not make a definitive conclusion regarding the child Zamer's injuries," but believed "it is likely that father [Nah.] . . . cause [sic] the injuries to this child."

At the PRC, the juvenile court ordered DCFS to place Zamer either with his siblings or with his paternal grandmother. The juvenile court set a contested hearing on the amended petition for September 26.

On September 26, DCFS submitted a packet of "last-minute information" to the juvenile court. Among the documents submitted was a report from Dr. Karen Imagawa of Children's Hospital Los Angeles, stating that Zamer had described incidents of physical abuse inflicted on him by a person called "12." Joshua and Justin identified "12" as Nah.

Prior to the September 26 hearing, both Joshua and Zamer were placed in the foster home with their siblings. Joshua, however, was subsequently removed due to behavioral problems and returned to his prior placement. At the September 26 hearing, the juvenile court learned that Joshua E., Sr. (the father of Joshua and Justin) had been released from prison but had not received notice of the hearing. The court therefore continued the contested hearing on the petition to November 1, and ordered that notice be given to Joshua E., Sr. Feldman (the CLC Unit 1 attorney for all the children except Zamer) raised the issue of Joshua's removal from the foster home, and requested that DCFS continue to seek a placement where all five children could be together. The juvenile court stated, "I don't know whether or not there's a conflict because — what if they like living where they are and they don't want to get moved?" The juvenile court nevertheless ordered DCFS to "explore placing all children together and whether be [sic] in the best interest." The juvenile court did not raise the issue of disqualification, nor did any of the attorneys or parties object to the Center's continued involvement in the matter.

The matter was called for the contested hearing on November 1. Marc Leftwich, the unit head of CLC Unit 2, appeared with Gupta as co-counsel for Zamer. CLC Unit 1 attorney Feldman appeared for the other children. Joshua E., Sr., the father of Joshua and...

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