Dependency Case Law

Steven J. Carroll v. San Diego (Sept. 13, 2002) 101 Cal.App.4th 1423 [124 Cal.Rptr.2d 891]. Court of Appeal, Fourth District, Division 1.

The juvenile court denied an attorney's motion to be relieved as counsel for all of her minor clients on the ground that a conflict of interest existed in violation of Welfare and Institutions Code section 366.26(c)(1)(E).

The juvenile court had sustained section 300 petitions alleging seven siblings as within the court's jurisdiction and entered dispositional orders to place them in foster care. The attorney was appointed as counsel for all of the children and appeared on behalf of them throughout the dependency proceedings. The Health and Human Services Agency (HHS) made the following recommendations: Termination of parental rights and adoption placement for three of the youngest children (then ages 3, 5, and 6); continued foster-care placement for the three oldest children (then ages 8, 11, and 12) because they were not adoptable owing to their ages; adoption assessment for the youngest child (then age 3), despite the fact that she had been living in the foster home with her three oldest siblings and was closely bonded to them.

The children's attorney filed a declaration of a conflict of interest and sought to be relieved. Section 366.26(c)(1) provides that when reunification services have been terminated and the court finds the child is likely to be adopted, the court must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental under one of the exceptions listed in subsections (A) through (E). A new exception provided by subsection (c)(1)(E) is whether "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." The attorney contended that an actual, disabling conflict of interest existed because the eldest child wished to maintain a sibling relationship with the three younger children but their adoption would sever the sibling relationship. Two of the children who were supposed to be available for adoption had also expressed an interest in preserving their sibling relationship.

Upon the trial court's denial of the motion, the attorney filed a petition for writ of mandamus requesting an order directing the trial court to relieve her as counsel for the children and to appoint separate counsel for each of the children. HHS agreed that a conflict of interest required the court to relieve the attorney but questioned whether different counsel was required for each child.

The Court of Appeal held that an actual conflict of interest existed between some of the siblings and that the attorney must be relieved as counsel for all of the children. The appellate court stated that when an actual conflict of interest arises, as it did in this case, the attorney must be relieved from representation of all of the minors. The appellate court then turned to the issue of whether different counsel had to be appointed for each child or whether the court had discretion to separate the minors into subsets according to their congruent interests and appoint counsel to each subset. In resolving the issue, the court examined the tension between DSS Manual rule 3-310, which prohibits an attorney from accepting new representation of multiple clients when a potential conflict of interest exists among the clients, and Welfare and Institutions Code section 317(c), which prohibits representation of a minor in a dependency proceeding and another person or agency whose interests conflict with the minor's. The court concluded that the two concepts could be reconciled by a rule that, in a dependency proceeding, an attorney may not represent multiple minors if there is either an actual conflict of interest between them or a reasonable likelihood that an actual conflict of interest would arise. Because it was impossible for the appellate court to determine the reasonable likelihood of actual conflicts of interest among the seven siblings, the court remanded the matter to the juvenile court to apply the foregoing standard and determine whether each minor should have separate counsel appointed or whether groups of the siblings could adequately be represented by the same counsel.