In re L.L.

Filed 12/22/10 In re L.L. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re L.L., et al., Persons Coming Under the
Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.L.,
Defendant and Appellant.
F059133
(Super. Ct. No. 08CEJ300033)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Mark W.
Snauffer and John F. Vogt, Judges; Jamileh L. Schwartzbart, Commissioner.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel,
for Plaintiff and Respondent.
-ooOoo-

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M.L. (father) appeals from an order terminating parental rights (Welf. & Inst.
Code, § 366.26)1 to his son L. and daughter M., whose mother is E.S. (mother).
Dependency proceedings over the children were initiated when mother‟s three-year-old
daughter, Erianna B., died as a result of multiple blunt force trauma. This led the juvenile
court to exercise its dependency jurisdiction over the children (§ 300, subds. (a), (b) &
(f)), remove them from parental custody, and deny mother and father reunification
services (§ 361.5, subds. (b)(4) & (6)). The court in turn set a section 366.26 hearing to
select and implement a permanent plan for the children. At that hearing, mother and
father submitted on the recommendation to terminate their parental rights and the court
selected adoption as the children‟s permanent plan.
Despite having been served a form notice of intent to file a writ petition, father
failed to challenge the court‟s setting order by way of a petition to this court for
extraordinary writ review. In this appeal, father does not raise any issues with respect to
the section 366.26 hearing. Instead, he attacks the court‟s jurisdictional findings, an
interim order suspending visitation, and an order granting de facto parent status to the
children‟s foster mother, claiming he may do so because his attorney had a conflict of
interest that he did not waive both at the dispositional hearing and at the section 366.26
hearing. Father further joins in arguments raised in mother‟s appeal which pertain to
orders made at or before the dispositional hearing. (In re L.L. (F059134).) Finding no
actual conflict of interest, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2008, father and mother, who were not married, were living together
with their two children, 18-month-old son L.L. and two-month-old daughter M.L.
Father‟s aunt, Charlotte, also lived with them. Mother had a three-year-old daughter,
1 All statutory references are to the Welfare and Institutions Code unless otherwise
stated.

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Erianna, whose father was J.B. Erianna had neurofibromatosis, Noonan‟s Syndrome, and
autism. She was nonverbal and communicated her needs by pointing. When she was
three months old she was diagnosed with a seizure disorder and prescribed medication.
She eventually outgrew the condition and no longer used medication to treat her seizures.
Erianna primarily lived with her paternal grandmother, Virginia B. According to mother,
Charlotte was not with Erianna that often.
According to Virginia, on Sunday, January 20, 2008, she took Erianna to father
and mother‟s house so they could watch her because Virginia was going out of town. On
Wednesday, January 23, mother called Virginia and said Erianna had several minor
bruises on her stomach and some unexplained injuries elsewhere on her body. That same
day, Virginia took Erianna and mother to see a doctor, who diagnosed Erianna with
impetigo due to an abrasion on her chin. The doctor noted the presence of bruises on her
stomach, which Virginia attributed to playing on a swing. Virginia subsequently returned
Erianna to mother‟s care.
Erianna stayed with mother and father until January 25, 2008, when an ambulance
was called to their apartment because mother thought Erianna was having a seizure.
Erianna was transported to Children‟s Hospital Central California (CHCC). A social
worker with the Department of Children and Family Services (Department) received a
crisis referral regarding allegations of physical abuse and general neglect of Erianna
Erianna was admitted to CHCC with a severe closed head injury; a CT scan showed
significant cerebral edema and subarachnoid hemorrhage. She was in the intensive care
unit on life support. She had bruises of varying shapes and colors on her abdomen, back,
legs, face and arms. She had an abrasion on her chin, an adult-sized bite mark on her
elbow and a smaller bite on her back, and a red circular mark inside her left knee. There
was swelling to her forehead and head. Her brain was swelling, she had almost no brain
activity, and she was not expected to survive. Erianna died on January 27, 2008.

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Dr. Don Fields, CHCC‟s child advocacy physician, told a social worker that
Erianna died from the head trauma she suffered and her medical conditions did not
contribute to her death. While Noonan‟s Syndrome can cause a bleeding disorder and
easy bruising, the bruises on her body were not caused by the syndrome, as they were too
numerous to measure. Bruises covered her entire body; they were in all different sizes,
shapes and colors, and in various stages of healing. Moreover, according to a geneticist
Dr. Fields spoke with, her current bruises could not have been related to her Noonan‟s
Syndrome because she did not have a history of bruising. She also had burn marks on her
face, adult and child-size bite marks on her elbow and back, and a “loop mark” bruise on
her knee consistent with extension cords.
Father claimed Erianna sustained the bruises when she fell in the bathtub. Father
said when he left the bathroom, Erianna was standing up in the bathtub, but when he
returned, she was lying face down in the water. Dr. Fields, however, said there was no
evidence she had been wet or had symptoms of drowning. It appeared to Dr. Fields that
she simply had been beaten, and more than likely she was beaten on more than one
occasion.
According to Dr. Kathleen Murphy, a neurosurgeon at CHCC, Erianna suffered a
severe head injury. She believed Erianna was quite likely the victim of non-accidental
trauma given the multiple bruises all over her body, the few abrasions on her chin, the
severe closed head injury with subarachnoid hemorrhage, and the cerebral edema. None
of these injuries had been explained by any version of documented history. Dr. Murphy
noted that while Erianna had a history of neurofibromatosis, autism and Noonan‟s
Syndrome, none of these could explain any of Erianna‟s “current, severe, [and] ultimately
fatal injuries.”
During an autopsy on Erianna‟s body, the pathologist found blunt force injuries to
the head, chest/abdomen, and arms/legs. The head injuries included multiple abrasions
and bruising of the face and scalp region, diffuse cerebral edema with recent subdural

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hematoma and herniation in the left hippocampal region, hemorrhage on the outside of
the skull in the central lower back of the head, and two areas of hemorrhage of the
reflected scalp. The chest/abdomen injuries included contusion of the front of the
stomach and the mesentery to the small intestine, circular injury over the right side of the
abdomen which was possibly a healing abrasion, circular hemorrhage on the right flank,
ovoid hemorrhage of the muscles of the left anterior chest, and subcutaneous hemorrhage
of the upper abdominal wall. Injuries to the arms and legs included hemorrhages over the
right knee, right shin, and of the soft tissue and skin of the left forearm. The coroner
ruled Erianna‟s death a homicide caused by multiple blunt force injuries with
complications that were sustained at another‟s hands at an unknown date, time and place.
The Dependency Petition
On January 29, 2008, the Fresno County Department of Children and Family
Services (Department) filed a dependency petition which alleged the children came
within the meaning of section 300, subdivisions (a), (b) and (f). With respect to
subdivision (a), the petition alleged that Erianna died after receiving severe head trauma
and numerous bruises and bite marks which were inflicted non-accidentally and the
children were at substantial risk of suffering serious physical harm inflicted by: (1) their
mother, as she caused fatal physical injuries to Erianna and had no reasonable
explanation as to how Erianna sustained her injuries; and (2) their father, as he caused
fatal injuries to Erianna, and had no reasonable explanation as to how Erianna sustained
her injuries.
With respect to section 300, subdivision (b), the petition alleged: (1) the children
were at substantial risk of suffering physical harm or illness in that mother failed to
protect Erianna from receiving fatal physical injuries caused by father, and she
reasonably should have known of Erianna‟s ongoing physical abuse; (2) the children
were at substantial risk of suffering physical harm or illness in that father failed to protect
Erianna from receiving fatal physical injuries caused by mother, and he reasonably

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should have known of Erianna‟s ongoing physical abuse; and (3) mother and father failed
to provide adequate supervision and protection for the children as they exposed them to
an unsafe environment of ongoing domestic violence, which included pushing each other
and verbal aggression and warranted police intervention on at least four occasions. The
subdivision (b) allegations also included two allegations that mother‟s and father‟s
substance abuse problems negatively affected their ability to provide regular care for the
children.
Finally, with respect to section 300, subdivision (f), the petition alleged:
(1) Erianna died because mother failed to protect her from being severely physically
abused by father and she reasonably should have known that he was abusing Erianna, as
she had numerous injuries in various stages of healing; (2) mother caused Erianna‟s death
by inflicting severe physical abuse, as Erianna suffered non-accidental fatal injuries while
in mother‟s care and custody; and (3) father caused Erianna‟s death through severe
physical abuse, as Erianna suffered non-accidental fatal injuries while in father‟s care and
custody.
At a January 29, 2008 team decision meeting attended by the parents, the
children‟s paternal grandmother Deanna M., two of the children‟s paternal aunts, and two
of the children‟s paternal cousins, one of whom was C.T., placement options for the
children were discussed and the parents identified one of the paternal aunts and the two
paternal cousins, including C.T., as relatives they wanted assessed for placement.
At the January 30, 2008 detention hearing, the court found father to be the
children‟s presumed father, ordered the children removed from parental custody and
temporarily placed them under the Department‟s care and custody. Reasonable,
supervised visitation was ordered for both parents, with visits between the parents and L.
occurring at least twice per week. Father‟s court-appointed attorney requested that
several relatives be assessed for placement, including C.T.

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On January 31, 2008, both mother and father were arrested for murder and cruel
and inhumane treatment, but mother was released from jail on February 4, 2008. Father,
however, was charged with murder, and remained incarcerated until October 2008, when
the murder charge was dropped.
During a February 20, 2008 hearing, at which a contested jurisdictional hearing
was set, the children‟s attorney requested the parents‟ visits with the children be
suspended temporarily pending disposition given the severity of the charges, but he did
not have any evidence of detriment to present. The court left the visitation order intact,
with the exception of ordering once a week visits for any incarcerated parent, stating that
if the Department or children‟s attorney wanted to change the order before the next
hearing, an ex parte application could be submitted.
In March 2008, the children‟s attorney submitted a JV-180 petition to suspend
visitation pending the dispositional hearing. After reviewing a letter from Dr. Fields, a
therapist who supervised mother‟s visits, and hearing from a social worker who
supervised the only visit father had with the children, the juvenile court suspended
visitation on an interim basis and set a contested hearing on the JV-180 petition, to be
held at the same time as the jurisdictional hearing.
Father‟s attorney was relieved from his appointment on May 20, 2008, and a new
attorney, Deloise Tritt, was appointed to represent him on May 28, 2008. In May 2008,
the Department began weekly visits between the children and their distant paternal
cousin, C.T, who, along with M.Y. (collectively the Y.‟s)2, were licensed Fresno County
foster parents, to see if a plan could be achieved for relative placement. In July 2008, the
Y.‟s home was approved for placement. By October 2008, the Department supported a
transition of the children to relative placement, but the children‟s therapist was concerned
2 C.T. and M.Y. eventually married. They will be referred to throughout the
remainder of this opinion as the Y.‟s.

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about moving them, as the foster parent reported L. exhibited aggressive behavior after
visits with his relatives.
At a November 18, 2008 hearing, the juvenile court granted a request by the
children‟s foster mother for de facto parent status. The request was not contested and
none of the parties objected to it.3 At that hearing, a Department social worker stated the
Department was in the process of attempting a transition plan to have the children placed
with relatives, and the Department‟s attorney requested the court issue an order giving the
Department discretion for relative placement. The de facto parent‟s attorney objected to
the Department‟s transition plan, however, based on a concern by the children‟s therapist
that moving them would be detrimental. The children‟s attorney also objected to moving
the children to relatives based on the therapist‟s opinion. While mother‟s attorney
submitted on the issue, father‟s attorney stated he wished to have the children placed with
a relative. The Department thereafter withdrew the request, asserting it was an issue for
disposition.
The Baby’s Dependency Petition
In November 2008, mother had a baby, L.S. (baby). Although mother did not
know who the baby‟s father was and identified both father and another man, J.J., as
potential fathers, DNA testing ultimately revealed that J.J. is the baby‟s biological father.
The Department initiated dependency proceedings over the baby on December 1, 2008.
The first amended petition alleged the baby came within dependency court jurisdiction
under (1) section 300, subdivision (f), as on or about January 27, 2008, Erianna died
because mother failed to protect her from being severely physically abused by father and
3 At a December 9, 2008 hearing, the Department‟s attorney pointed out that the
granting of de facto parent status was premature as the jurisdictional hearing had not yet
been held. Rather than withdrawing the grant of de facto parent status, the juvenile court,
without objection from any of the parties, ordered that the de facto parent not participate
in the proceedings until at least disposition, although she could be present during them.

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mother reasonably should have known that father was abusing Erianna, as she had
numerous injuries in various stages of healing, and (2) section 300, subdivision (j), based
on allegations that mother had neglected and abused Erianna and the children, and had
failed to address the issues that led to dependency jurisdiction over them. On
November 26, 2008, the baby was placed with the Y.‟s, who were being considered for
placement of the children.
The Jurisdictional Hearing on the Children’s Petition
The contested jurisdictional hearing on the children‟s petition began on
January 21, 2009. The Department submitted on four Department reports, the reporter‟s
transcript of the March 12, 2008 hearing regarding the interim order suspending
visitation, and a January 20, 2009 letter from the children‟s therapist regarding her
recommendations on increasing visitation with the Y.‟s. Testimony was taken on
January 22, with mother testifying on her own behalf, and father‟s mother, Deanna M.,
and Deanna‟s ex-husband, Michael G., testifying on father‟s behalf. Closing arguments
were held on January 23, and the court‟s decision was announced on January 26.
The court found by a preponderance of the evidence that: (1) from January 20,
2008 through January 25, 2008, Erianna was in the care of father and mother, with the
exception of when she was taken to the clinic on Wednesday, January 23, and that on
January 25, from approximately 9:00 a.m. to 11:30 a.m., father was the only adult
supervising Erianna; and (2) Erianna sustained blunt force trauma between the January 23
medical visit and when the ambulance was called on January 25. In reaching this finding,
the court stated the medical evidence clearly showed that something devastating occurred
after the January 23 medical visit, since all of the health care providers who attended
Erianna were of the opinion that her injuries and death were the product of external blunt
force trauma to the head, including the CHCC discharge summary, the autopsy, and
Dr. Field‟s and Dr. Huffer‟s opinions, and mother and Deanna, who had seen Erianna

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during the week of her death, had also testified they did not observe bruising to her head
before January 23, which bruising was obvious from the autopsy pictures.
The Disposition Hearing in the Children’s Case
In the report prepared for the dispositional hearing, the Department stated that the
after October 2008, it had begun working with the children‟s therapist, their care
provider, and the Y.‟s, to address the issues surrounding a possible change of placement.
In January 2009, L.‟s therapist recommended that if a transition were to occur, visits
between the Y.‟s and L. should increase in frequency. As of February 2009, the
Department recommended the Y.‟s continue to participate in unsupervised visits with the
children and requested discretion for liberal visits. It was not, however, recommending
placement with the Y.‟s at that time. The Department noted that the children‟s current
care provider was willing to provide a permanent plan of adoption for the children should
the parents be unable to reunify and the Department‟s concurrent plan of adoption by the
Y.‟s could not be achieved. The Department recommended that mother and father both
be denied reunification services pursuant to section 361.5, subdivisions (b)(4) and (b)(6).
On April 28, 2009, a letter from the Y.‟s was filed, in which they stated: they had
been a licensed foster care home for a year and a half; once it came to their attention they
had family in the system they immediately sought relative placement; they and father
were “long distance relatives” and were not a close family; the first time C. saw mother
was in court; neither mother nor father knew the Y.‟s address or home number; the Y.‟s
planned to do whatever was necessary to keep the children from harm and danger and
provide a safe and loving environment; they wanted to keep the siblings together, so they
would know their baby sister for whom they were currently caring; they wanted to teach
the children about their African-American culture; and they had been visiting the children
for a little over a year on a weekly basis and the children had bonded with them.
In April 2009, the Department submitted to the juvenile court a JV-180 request to
grant it discretion for relative placement with the Y.‟s and allow it to transition the

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children to the Y.‟s home. The Department requested the JV-180 be heard at the
dispositional hearing. Father‟s attorney stated he concurred in the request and supported
the JV-180, but father still wanted to contest the recommendation in the disposition
report. Mother‟s attorney also stated she supported the JV-180, as did the children‟s
attorney. The de facto parent‟s attorney, however, was opposed to the JV-180.
Father filed a statement of contested issues for the dispositional hearing, which
included assertions that there was insufficient evidence for the court to have found father
caused Erianna‟s death, reunification services for father were necessary and appropriate
for the children and in their best interests, it would be detrimental to the children not to
provide him reunification services, and it would be in the children‟s best interest to
remove them from the foster parent‟s home and place them with the Y.‟s, where they
would benefit from and have the advantages of their extended family and cultural support
within the African-American community.
At the June 9, 2009 dispositional hearing for the children, the juvenile court stated
that it had met with counsel and the de facto parent in chambers to discuss the possible
resolution of the case by stipulation. Since time for the morning session had been
exhausted, the court directed the parties to continue to meet and confer, and asked them
to return at 2:30 p.m., when mother‟s attorney, Kenneth Carrington, stated he would be
available to return. The court ordered the Y.‟s, who were witnesses, to return in the
afternoon.
When the court went on the record at the afternoon session, Carrington was not
present. Therefore, the court asked father‟s attorney, Deloise Tritt, to appear on his
behalf, which she agreed to do, stating it was a special appearance. The court explained
to mother, who was present, that Carrington had communicated earlier in the afternoon
his inability to be present that afternoon and asked her for purposes of the proceedings
whether she would agree to have Tritt specially appear for Carrington and on her behalf.
Mother said “Yes.”

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The Department‟s attorney then stated that he believed the parties were able to
reach a settlement agreement, which mother and father had already agreed to “that with
the overall agreement as to the placement of the children that they‟re not going to be
contesting the disposition part of this case.” The Department‟s attorney explained the
agreement: the court would grant the JV-180 giving the Department discretion to place
the children with the Y.‟s and authorize discretion to begin liberal visits, and the
Department would implement a detailed five-month transition plan to transition the
children from the de facto parent to the Y.‟s. By stipulation, the parties would agree to
waive time for the normal setting of a section 366.26 hearing and agree it could be set
sometime in November. Finally, the de facto parent would be given visitation rights after
the transition period until adoption took place, and there would be a post-adoption
visitation agreement. The de facto parent‟s attorney stated that all the parties had agreed
to this, and specifically the Y.‟s were in agreement with the post-adoption visitation
order.
The court then stated that the Y.‟s were unrepresented in the proceedings and it
became clear during the court‟s informal discussions that Tritt had become conversant
with them personally and acquainted with the nature and extent of their participation in
this matter, but they did not discuss the specifics of her being able to officially represent
them. The court asked Tritt if that agreement would be forthcoming. Tritt responded that
it would, that she had discussed the necessity for a conflict waiver with father, who
agreed to sign one, and she had discussed the potential of representing the Y.‟s as de
facto parents before the court, and they wanted her to represent them. Tritt stated she
would need to be appointed if she was going to be representing the Y.‟s to take care of
the formalities.
The court asked father directly whether he understood what the court had been
discussing with Tritt. Father said “Yes, your Honor.” Father also agreed that Tritt could
continue to represent him and simultaneously represent the Y.‟s. The court also asked

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mother whether she understood, and mother said “Yes.” The court asked mother if she
objected to Tritt representing the Y.‟s, and mother said “No.” The court asked whether
anyone objected to Tritt representing the Y.‟s; both the de facto parent‟s attorney and the
Department‟s attorney said “No.” The court then accepted the oral representation of the
waiver of conflict, “the potential conflict of interest by [father]” and appointed Tritt to
represent the Y.‟s interests in the case.
The court asked the Department‟s attorney whether there was anything to add to
the agreement; he responded “No.” The court asked the children‟s attorney whether he
objected; he responded “No objection, your Honor.” When the court asked the de facto
parent‟s attorney whether he objected, he asked for clarification of something on the
minute order, but then stated he did not object. Carrington then appeared in the
proceedings. The court stated Carrington was now present and asked whether he
objected on mother‟s behalf. He responded, “No, your Honor, we‟ll submit it.” Tritt
submitted on behalf of father. The court then accepted the parties‟ stipulation with regard
to both the dispositional hearing and the JV-180 request.
The court found that mother and father had made minimal progress in alleviating
or mitigating the causes necessitating placement, the children were persons described
within section 300, subdivisions (a), (b) and (f), and made them dependents. The court
ordered that reunification services not be provided to either mother or father pursuant to
section 361.5, subdivisions (b)(4) and (b)(6). The court set a section 366.26 hearing for
November 24, 2009. The court also granted the JV-180 petition.
The baby‟s jurisdictional hearing was held on May 6, 2009, and the court found
the amended petition‟s allegations true. On August 26, 2009, Tritt appeared on the Y.‟s
behalf at a dispositional hearing for the baby. Mother submitted on the report and
recommendation of no services. Tritt requested the Y.‟s be given de facto parent status,
which the court granted.

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On September 18, 2009, Tritt petitioned for an accelerated move of the children to
the Y.‟s home, but the petition was withdrawn on October 27, 2009 because the
placement of the children was to be completed that day.
The Section 366.26 Hearing
At the section 366.26 hearing for the children and the baby, Tritt, who also
appeared for the Y.‟s, told the court there were conflict waivers in the case. Both mother
and father submitted on the recommendation to terminate their parental rights, which the
court ordered. The court selected adoption as the permanent plan for the children and the
baby. The Y.‟s did not agree to post-adoption visitation for either father or mother.
DISCUSSION
Father appeals from the section 366.26 hearing order terminating his parental
rights. The issues he raises on appeal, however, pertain only to orders made at or before
the June 2009 dispositional hearing. Specifically, he attempts to challenge the suspension
of visitation in March 2008, the grant of de facto parent status to the children‟s foster
mother in November 2008, and the jurisdictional findings. Despite being mailed a notice
of intent to file a writ petition, father did not petition for writ review from the order
setting the section 366.26 hearing, which is the exclusively prescribed vehicle for
appellate review of all orders issued at that hearing. (In re Anthony B. (1999) 72
Cal.App.4th 1017, 1021-1023; § 366.26, subd. (l ).) Failure to seek writ review
forecloses father from seeking relief from any order made at or before the June 2009
dispositional hearing. (In re Tabitha W. (2006) 143 Cal.App.4th 811, 815-816; see also
In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151 [pursuant to the waiver rule “an
appellate court in a dependency proceeding may not inquire into the merits of a prior
final appealable order on an appeal from later appealable order . . . ”].)
Father acknowledges that normally he would be precluded from challenging
orders made at the dispositional hearing. Nevertheless, he asserts we should find that he
did not waive his challenges because Tritt had an actual conflict of interest that the record

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fails to show he effectively waived and which deprived him of counsel and due process,
citing In re Janee J. (1999) 74 Cal.App.4th 198 (Janee J.). In Janee J., the court held
that due process precludes application of the waiver rule where a defect so fundamentally
undermined the statutory scheme that the parent was denied its protections as a whole,
such as where the parent lacked notice of the right to petition for review of the order
setting the section 366.26 hearing. (Janee J., supra, 74 Cal.App.4th at pp. 208-209.) In
addition, “to fall outside the waiver rule, defects must go beyond mere errors that might
have been held reversible had they been properly and timely reviewed. To allow an
exception for mere „reversible error‟ of that sort would abrogate the review scheme
[citations] and turn the question of waiver into a review on the merits.” (Id. at p. 209.)
Cases refusing to apply the waiver rule illustrate the circumstances in which due
process requires this result. In In re S.D. (2002) 99 Cal.App.4th 1068, the appellate court
refused to apply the waiver rule where the mother‟s attorney had conceded jurisdiction
based on an erroneous understanding of the law as “the error here was entirely legal, and
quite fundamental. . . . [T]he parent is hardly in a position to recognize, and
independently protest, her attorney‟s failure to properly analyze the applicable law.” (Id.
at pp. 1074-1075, 1077-1078, 1080.) The court in In re M.F. (2008) 161 Cal.App.4th
673, vacated an order terminating parental rights because the trial court failed to appoint
a guardian ad litem for the mother, herself a minor, until after services were terminated
and the hearing on termination of parental rights was pending. Although the mother had
not filed a writ petition after her reunification services were terminated, In re M.F.
declined to apply the waiver rule because the “failure to appoint a guardian ad litem in an
appropriate case goes to the very ability of the parent to meaningfully participate in the
proceedings. For the same reasons that [the mother] needed a guardian ad litem, she was
„hardly in a position to recognize . . . and independently protest‟ the failure to appoint her
one.” (Id. at p. 682.)

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Here, father contends that we should decline to apply the waiver rule because Tritt
had an actual conflict of interest at the dispositional hearing that “undermined the
fundamental fairness of the entire dependency proceedings.” He asserts the conflict arose
when Tritt was appointed to represent the Y.‟s. Rule 3-310 of the Rules of Professional
Conduct provides that an attorney cannot represent more than one client in a matter in
which the interests of the clients actually or potentially conflict without the informed
written consent of each client. Simultaneous representation of more than one client when
their interests actually conflict is the “most egregious example” of a violation of this rule.
(Flatt v. Superior Court (1994) 9 Cal.4th 275, 282-283.) Here, father claims Tritt had an
actual conflict that excused his failure to petition for writ review from the order setting
the section 366.26 hearing.
On review of the record, however, we conclude that by the time Tritt was
appointed to represent the Y.‟s no actual conflict was present. While, as father points
out, he contested jurisdiction, objected to the order suspending visitation, and initially
objected to the Department‟s recommendation that he not receive reunification services
by setting the matter for a contested hearing, when the dispositional hearing finally was
held, the parties worked out a settlement whereby father and mother agreed not to contest
disposition and the Department and the de facto parent agreed the children would be
placed with the Y.‟s. The settlement discussions and agreement took place while father
was Tritt‟s sole client in this case. When the juvenile court appointed Tritt to represent
the Y.‟s, with father‟s agreement and without objection from any other party, father and
the Y.‟s shared a common goal, i.e. to have the children placed with the Y.‟s with a view
toward their adopting them.
When jointly represented clients share common goals in their simultaneous
representation, their interests are not actually (currently) in conflict. Put another way,
there is no adversity where two parties have “sought to accomplish a common end result
and engaged the services of a single attorney to implement their joint plan.” (Moxley v.

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Robertson (1959) 169 Cal.App.2d 72, 75 [attorney‟s representation of both seller and
buyer of equipment was proper, where they had common purpose of wresting possession
of equipment from defendant]; accord, Buehler v. Sbardellati (1995) 34 Cal.App.4th
1527, 1540 [“an attorney‟s representation of partners pursuing a common end result does
not constitute a conflict of interest”]; Klemm v. Superior Court (1977) 75 Cal.App.3d
893, 899 [attorney properly represented both divorcing spouses, where the couple shared
a common interest in opposing the county‟s efforts to impose child support obligation on
the husband].) Here, the interests of father and the Y.‟s did not actually conflict when
Tritt was appointed to represent the Y.‟s since father had already agreed to not contest
disposition and to support placement of the children with the Y.‟s.
Father contends that Tritt was advocating for the Y.‟s interests in gaining custody
and seeking adoption before she was appointed to represent them, pointing to her request
at the March 11, 2009 hearing, when the court set the contested disposition hearing, that
the court order the Department to assess the Y.‟s for placement of the children and stated
the direction of the case seemed to be moving toward the Y.‟s, which would be in the
children‟s best interests. That Tritt was advocating for relative placement, however, does
not mean that she was advocating for a position contrary to father‟s interests. In fact, the
social worker and court are to consider a father‟s wishes when determining whether to
give preferential consideration to a relative‟s request for placement. (§ 361.3, subd.
(a)(2).) Moreover, as shown by father‟s statement of contested issues for the
dispositional hearing filed on May 5, 2009, Tritt was not only advocating for placement
of the children with the Y.‟s, but was also advocating for his interests in obtaining
reunification services and placement of the children with him, as the statement shows he
intended to challenge the sufficiency of the evidence that he caused Erianna‟s death, the
recommendation to deny reunification services, and removal.
Father contends Tritt had a conflict because it would have been contrary to the
Y.‟s interests for her to advise father to file a notice of intent to file a writ petition, or to

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have filed it herself, and therefore he “could not avail himself of the protections of the
dependency scheme, including, inter alia, his right to contest the denial of custody,
services and visitation by way of writ review after the [dispositional] hearing.” But Tritt
did not have a duty to initiate writ proceedings. In In re Cathina W. (1998) 68
Cal.App.4th 716, 723 (Cathina W.), this court specifically rejected the suggestion that it
was incumbent upon a parent‟s counsel to ensure a client‟s appellate rights were
protected by filing the requisite notice of intent and the writ petition. “The „burden is on
the parent in a juvenile dependency case to pursue his or her appellate rights[; i]t is not
the attorney’s burden.‟ (Janice J. v. Superior Court (1997) 55 Cal.App.4th 690, 692;
Suzanne J. v. Superior Court (1996) 46 Cal.App.4th 785, 788.) In the absence of a
specific direction from the [parent], [the] attorney in the juvenile court was not obligated
to take any steps to comply with section 366.26, subdivision (l ), on the [parent‟s]
behalf.” (Cathina W., supra, 68 Cal.App.4th at pp. 723-724, fn. omitted.)
While father complains that he was unable to avail himself of the protections of
the dependency scheme absent conflict-free counsel, he was served with the notice of
intent to file a writ petition. It was father‟s burden to ensure that the notice of intent and
petition for writ review were filed. The record is silent on what advice Tritt may or may
not have given him regarding filing of a petition for writ review or whether father
authorized her to file the notice. We note that Tritt, when she agreed that the juvenile
court could mail notice of father‟s writ rights to him, recognized that he had limited time
to act, as she requested the court send the notice out quickly due to the short deadline
involved. There is nothing in the record to suggest that Tritt dissuaded him from filing
the notice of intent and writ petition.
Father claims Tritt‟s conflict continued at the section 366.26 hearing. There is
nothing in the record, however, to show that father wanted to change his course of action
at that hearing so that it conflicted with the Y.‟s interests. While he asserts his filing of
the notice of appeal shows he did not understand that Tritt was submitting on the

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recommendation to terminate his parental rights and that he in fact wanted to challenge
that decision, that he had a change of heart after the hearing does not mean he did not
agree with Tritt‟s recommendations at that hearing.
In sum, on this record, father has not shown an actual conflict of interest that
violated his rights to due process and a fundamentally fair hearing. Accordingly, there is
no basis to excuse father‟s failure to file a notice of intent and petition for writ review.
His failure to do so precludes him from challenging the jurisdictional findings, the
suspension of visitation, and the granting of de facto parent status to the foster mother.
Since father raises no issues with respect to the section 366.26 hearing, and the issues in
mother‟s appeal address only orders made at or before the dispositional hearing, there is
no basis to reverse any of the juvenile court‟s findings and orders.
DISPOSITION
The juvenile court‟s order is affirmed.
_____________________
Gomes, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Dawson, J.

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