Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Stephen Marpet, Juvenile Court Referee. Los Angeles County Super. Ct. No. CK57499
Darold M. Shirwo, in propria persona, for Objector and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Respondent T.R.
No appearance on behalf of Plaintiff and Respondent Los Angeles County Department of Children and Family Services.
TURNER, P. J.
Darold Shirwo, an attorney formerly appointed to represent the mother, T.R., has appealed from a September 26, 2007 order relieving him as counsel. After Mr. Shirwo was relieved, the Law Office of Timothy Martella was appointed to represent the mother. We agree with the mother’s appellate counsel the appeal is moot as she no longer wishes to be represented by Mr. Shirwo and her change of view means her rights are no longer at issue. Thus, we dismiss the appeal.
On December 22, 2004, the mother was named in the first dependency petition. On the same date, Mr. Shirwo was appointed by the juvenile court to represent the mother in connection with the first dependency petition. Mr. Shirwo represented the mother: at the detention hearing and arraignment; pretrial resolution proceedings which resulted in a settlement; hearings on compliance with the settlement and the right to unification services and visitation; and parental termination rights proceedings.
On September 21, 2007, a new Welfare and Institutions Code section 300 petition concerning a different child was filed. On September 26, 2007, the detention hearing was held on the second dependency petition. Mr. Shirwo sought to represent the mother in connection with the new petition. The juvenile court stated: “[T]he court has instituted a new program for representation of parents in all new petitions. It [has] contracted with an organization called Los Angeles Dependency lawyers, Inc. This contract provides a consistent funding source for additional training, education, supervision, appellate and other support services for its attorneys not readily available for your existing attorney.” The juvenile court declined to appoint Mr. Shirwo in connection with the new September 21, 2007 petition. The juvenile court then ruled in connection with the first December 22, 2004 petition: “[I]t would be inappropriate for you to have two lawyers representing you and for the reasons I have just stated, the court is finding good cause to relieve your current counsel who represents you on the other children with respect to those other children unless you can show that representation by . . . the attorney from the new organization would be detrimental to your interests because your case is so unique, your attorney - - current attorney has an intimate knowledge of your case and your relationship with your attorney is essential for appropriate handing of the case.” The mother stated she wished to have Mr. Shirwo continue to represent her. Mr. Shirwo objected to being relieved. Mr. Shirwo appealed from the order relieving him as counsel.
On April 2, 2008, while the case was on appeal, the Law Office of Timothy Martella, which is part of Los Angeles Dependency Lawyers, Inc., submitted a letter to this court requesting the appointment of an attorney on appeal pursuant to California Rules of Court, rule 5.661(c)(1). The Law Office of Timothy Martella was appointed by the juvenile court to represent the mother. The letter stated the mother’s attorney, Trane Hunter, and the firm’s appellate lawyer, Eliot Lee Grossman, had spoken to her. Mr. Grossman’s letter states: “[The mother’s] present trial attorney from our office, Trane Hunter, Esq., and I contacted her today by telephone to ascertain her position with regard to Mr. Shirwo’s appeal. [The mother] advised us she opposes the appeal, does not wish to have Mr. Shirwo reinstated as her attorney, and wishes to continue to be represented by Mr. Hunter. Based upon that, we hereby request, on behalf of [the mother], who is indigent, that an appellate attorney be appointed to file an opposing brief for her . . . .” We granted the mother’s request and Christopher Blake was appointed to represent her.
The mother argues the appeal must be dismissed on mootness grounds. The appeal was originally brought to vindicate her rights. She no longer desires to assert those rights. To reverse the order under review would violate her right to counsel of her choice. And at any post appeal hearing, she would be asserting her right to be represented by Mr. Hunter. Thus, she argues the appeal should be dismissed on mootness grounds.
If we were to reverse the September 26, 2007 order relieving Mr. Shirwo as counsel, upon remittitur issuance, the mother would be requesting that Mr. Hunter represent her. Under Mr. Shirwo’s own analysis, to relieve Mr. Hunter would deny the mother her right to counsel of choice and interfere with the attorney-client relationship. An appeal must be dismissed when it is impossible for an appellate court to provide effective relief. (Eye Dog Foundation v. State Bd. of Guide Dogs for Blind (1967) 67 Cal.2d 536, 541; Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) In the dependency context, appeals and writ petitions have been dismissed on mootness grounds where: a subsequent order is issued terminating the juvenile’s court’s jurisdiction over a child (In re Albert G. (2003) 113 Cal.App.4th 132, 134-135); when a subsequent order terminating parental rights is entered (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1317); the completed transfer of a case to another jurisdiction divests California courts of jurisdiction (In re M.M. (2007) 154 Cal.App.4th 897, 913); a minor attains majority (In re Katherine R. (1970) 6 Cal.App.3d 354, 357); when a child challenges the extension of reunification services to the 18-month hearing and the services are provided by the time the appeal is decided (In re Pablo D. (1998) 67 Cal.App.4th 759, 761); and when in an appeal from an order denying visitation rights to an incarcerated father, he is released from prison. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) Here, as in these cases, to reverse the order under review, we would return the matter to the juvenile court where the mother would assert her right to be represented by Mr. Hunter and the Law Office of Timothy Martella. Mr. Shirwo’s contentions are now moot.
In a similar vein, the appeal should be dismissed because the mother no longer desires to challenge Mr. Shirwo’s removal. Mr. Shirwo has no cognizable right at stake. When Mr. Shirwo filed the notice of appeal, the mother expressly desired he represent her. And Mr. Shirwo arguably could assert the mother’s rights to retain him as her counsel. But now the situation has entirely changed; she no longer wants Mr. Shirwo to represent her. Since it is her cognizable rights that are at issue and she no longer desires to be represented by Mr. Shirwo, the appeal should be dismissed on this separate ground. (Guillermo G. v. Superior Court (1995) 33 Cal.App.4th 1168, 1173-1174; see In re Steven H. (2001) 86 Cal.App.4th 1023, 1029; Suzanne J. v. Superior Court (1996) 46 Cal.App.4th 785, 788.)
The appeal is dismissed.
I concur: ARMSTRONG, J.
MOSK, Dissenting
Attorney Darold Shirwo (Shirwo) appeals an order of the juvenile court relieving him as counsel for T.R. (mother) in dependency proceedings. I would not dismiss the appeal because, based on the record, I do not believe we should consider the matter moot. Even if it were moot, the issue is of such significance that it should be heard and resolved. I would hold that the juvenile court abused its discretion in relieving Shirwo pursuant to Welfare and Institutions Code section 317, subdivision (d) because a change in the juvenile court’s administrative policy with respect to the appointment of counsel for parents in new matters does not constitute cause to relieve an attorney in a preexisting and ongoing matter.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
In December 2004 and January 2005, appellant Shirwo was appointed as the attorney for mother in dependency proceedings relating to four of mother’s children. By mid-August 2007, the proceedings were in the permanency planning stage. The plan was that mother’s children would be adopted by their maternal grandmother, with whom they were placed. Maternal grandmother, however, had a prior drug conviction that was delaying approval of her as an adoptive parent. Shirwo appeared and represented mother at a hearing on June 14, 2007 and, according to the court’s minute order, also on August 16, 2007. There was no discussion at either hearing of relieving Shirwo as attorney for mother.
Proceedings with respect to two of mother’s children were subsequently terminated in April 2005.
The juvenile court’s June 14 minute order states that Shirwo was not present and that another attorney appeared on his behalf, but the reporter’s transcript states that Shirwo was present and records Shirwo making his appearance. In contrast, the reporter’s transcript is unclear whether Shirwo was physically present at the August 16 hearing, but the juvenile court’s remarks from the bench indicate that Shirwo participated in the hearing and the minute order states he was present.
In September 2007, mother gave birth to her fifth child. On September 21, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition pursuant to section 300 with respect to mother’s newborn child. The juvenile court held a detention hearing that same day. Mother did not appear because she was in custody, and Shirwo was not present. The juvenile court stated that it would appoint counsel for mother with respect to the new petition when she appeared. The juvenile court ordered the newborn child detained. There was no discussion of relieving Shirwo in the proceedings relating to mother’s other children.
At the next hearing, on September 26, 2007, mother appeared, and Shirwo sought to be appointed as the attorney for mother in the proceedings relating to the newborn. The juvenile court explained to mother that the juvenile court had “instituted a new program for representation of parents in all new petitions” pursuant to a contract with Los Angeles Dependency Lawyers, Inc. (LADL). The court would therefore be appointing an LADL attorney to represent mother with respect to the new petition.
The juvenile court continued, “And since it would be inappropriate for you to have two lawyers representing you and for the reasons I have just stated, the court is finding good cause to relieve your current lawyer who represents you on the other children with respect to those other children unless you can show that representation by Mr. Shirwo on—strike that—that representation by the attorney from the new organization would be detrimental to your interests because your case is so unique, your attorney—current attorney has intimate knowledge of your case and your relationship with your attorney is essential for appropriate handling of the case.”
Mother responded that she wanted Shirwo to continue representing her “[b]ecause he knows about my case and is aware about what my case has been and everything.” The juvenile court found this insufficient, stating that “[t]he new allegations in this petition are simply that you have this three-year history of drug abuse, and that makes you incapable of providing care and supervision for this current child. [¶] The court does not find that there is unique circumstances [sic] by any objective or subjective standard which would allow Mr. Shirwo to remain on as your lawyer.” The juvenile court relieved Shirwo, and appointed LADL “for all purposes in this case.” There is no indication in the record that the juvenile court gave prior notice to either mother or Shirwo that it was considering relieving Shirwo with respect to mother’s other children.
Shirwo objected, stating that the juvenile court’s action was “contrary to case law” and “statutory provisions,” and arguing that mother’s existing case “does pose an exception to Judge Nash’s . . . new regulations.” The juvenile court noted Shirwo’s objection. After a recess to permit mother to talk to her new lawyer, the juvenile court appointed LADL lawyer Trane Hunter to represent mother and continued the hearing. The juvenile court’s minute order states, “The court does not find good cause to keep Mr. Shirwo as counsel of record relieving him as mother’s attorney and appointing new counsel Mr. Hunter to represent her.” Shirwo timely appealed, and has standing to do so. (See A.I. Credit Corp., Inc. v. Aguilar & Sebastinelli (2003) 113 Cal.App.4th 1072, 1077 [“Disqualified attorneys themselves have standing to challenge orders disqualifying them”]; see also In re Jasmine S. (2007) 153 Cal.App.4th 835, 841-842.)
Neither a contract with LADL nor “Judge Nash’s . . . regulations” referred to by Shirwo in the juvenile court are part of the record on appeal. It appears that, while these proceedings were pending in the juvenile court, the Administrative Office of the Courts (AOC) contracted with LADL to provide legal services for indigent parents in dependency proceedings in Los Angeles Superior Court. Shirwo, we infer, is not employed by LADL. (See generally Los Angeles County Dependency Attorneys, Inc. v. Department of General Services (2008) 161 Cal.App.4th 230, 232.)
DISCUSSION
A. Section 317 and Standard of Review
A parent’s right to counsel in dependency proceedings is generally governed by Section 317. Subdivision (a)(1) provides that the juvenile court may appoint counsel for a parent in any case if the parent “desires counsel but is presently financially unable to afford and cannot for that reason employ counsel . . . .” Subdivision (b) requires the juvenile court to appoint counsel for a parent who cannot afford counsel when “the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care . . ., unless the court finds that the parent . . . has made a knowing and intelligent waiver of counsel . . . .” Once appointed, “counsel . . . shall represent the parent . . . at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent, guardian, or child unless relieved by the court upon the substitution of other counsel or for cause.” (§ 317, subd. (d), italics added.) The court reviews a juvenile court’s decision to relieve counsel pursuant to section 317, subdivision (d) for an abuse of discretion. (In re Jesse C. (1999) 71 Cal.App.4th 1481, 1491; see also In re Jasmine S., supra, 153 Cal.App.4th at p. 841.)
B. Mother’s Request to Dismiss the Appeal
Although Shirwo appealed the juvenile court’s order relieving him as counsel, he did not seek a writ of supersedeas or a temporary stay of the juvenile court proceedings. Those proceedings have continued. In April 2008—nearly five months after Shirwo was relieved, and after Shirwo filed his opening brief on appeal—mother’s LADL attorney submitted a letter to this court to inform us that mother’s wishes had changed, that she no longer wishes Shirwo to be reinstated as her attorney, and that she wants her LADL attorney to continue to represent her in the juvenile court. Mother’s LADL attorney requested that this court appoint an attorney to represent mother on appeal. The court did so. On appeal, mother agrees with Shirwo that the juvenile court abused its discretion in relieving Shirwo, but asks the court to dismiss the appeal because she is satisfied with her LADL counsel and sees no benefit to be gained by replacing her LADL counsel with Shirwo. Mother’s appellate counsel represents that after independent investigation, he is satisfied that mother wishes to retain her LADL counsel to represent her in the juvenile court.
Shirwo did not file a reply brief. (Cal. Rules of Ct., rules 8.200(a)(3), 8.412(a).) All further rule references are to the California Rules of Court.
Mother’s brief on appeal is, in effect, a motion to dismiss the appeal as moot because of mother’s change of position with respect to legal representation of her in the juvenile court. A motion, however, “must be accompanied . . ., if it is based on matters outside the record, by declarations or other supporting evidence.” (Rule 8.54(a)(2).) Mother requests that the court “tak[e] notice” of the letter from her LADL attorney, but mother has filed no request for judicial notice (Rule 8.252(a)), and, in any event, the letter and its hearsay statements regarding mother’s wishes are not subject to judicial notice. (Evid. Code, § 459; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1484, fn. 4.) Even if the letter were competent evidence of mother’s change of position, it does not appear that this court may augment the record on appeal to include it because there is no indication that the letter was filed or lodged in the superior court. (Rule 8.155(a)(1)(A).) As mother recognizes, an appellate court generally will not consider matters outside the record or events that occur in dependency proceedings subsequent to the order on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Although I have no reason to doubt counsel’s representations, there is no cognizable basis in the record to dismiss Shirwo’s appeal because of mother’s purported change of heart.
Moreover, I believe this case involves an issue of broad public interest that is likely to recur. “If an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue, even though an event occurring during its pendency would normally render the matter moot.” (Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716; accord, In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1086 [“we may decline to dismiss a case that has become moot ‘where the appeal raises issues of continuing public importance’”]; In re J.G. (2008) 159 Cal.App.4th 1056, 1062 [“an appellate court may resolve controversies that are technically moot if the issues are of substantial and continuing public interest”].) This is such a case. At the very least, the court should discuss the issue. (People v. Cheek (2001) 25 Cal.4th 894, 897-898.)
C. Lack of Notice
Shirwo argues, albeit obliquely, that the trial court failed to comply with the procedures set forth in Code of Civil Procedure section 284 (section 284) when it relieved him. Section 284 applies to proceedings to relieve counsel under section 317, subdivision (d). (In re Malcolm D. (1996) 42 Cal.App.4th 904, 917, fn. 4; In re Ronald R. (1995) 37 Cal.App.4th 1186, 1194.) Section 284 provides, “The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: [¶] . . . [¶] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” Either as a matter of statutory interpretation or due process, the parent must be given notice of, and a hearing on, the court’s contemplated action to relieve counsel. (In re Jesse C., supra, 71 Cal.App.4th at p. 1491; In re Julian L. (1998) 67 Cal.App.4th 204, 207-208; Janet O. v. Superior Court (1996) 42 Cal.App.4th 1058, 1066-1067.) No prior notice of its intent to relieve Shirwo was provided by the juvenile court in this case. Failure to object on the basis of lack of notice, however, forfeits the claim on appeal. (In re Jesse C., supra, 71 Cal.App.4th at p. 1491.) Shirwo’s general objections that the juvenile court’s order violated unspecified “case law” and “statutory provisions” were not sufficiently specific to preserve the issue of lack of notice for appeal.
D. For Cause
Shirwo contends, and mother agrees, that the juvenile court lacked cause to relieve him based on its determination that it was required by juvenile court policy to appoint an LADL attorney to represent mother with respect to mother’s newborn child, and that it would be “inappropriate” for mother to be represented by two attorneys. I agree that the juvenile court lacked sufficient cause to relieve Shirwo under section 317, subdivision (d), and therefore abused its discretion.
1. Whether Cause is Required
The first issue is whether, in these circumstances, cause was required to relieve Shirwo. The operative language in section 317, subdivision (d) provides, “Counsel shall continue to represent the parent, guardian, or child unless relieved by the court [1] upon the substitution of other counsel or [2] for cause.” (Italics added.) This language reasonably might be interpreted to mean that the juvenile court may relieve counsel at any time “upon the substitution of other counsel,” regardless of cause. In this case, LADL attorney Trane Hunter was immediately “substituted” by the juvenile court for Shirwo as counsel for mother. On the other hand, the phrase “substitution of counsel” may reasonably be understood to refer to a consensual substitution of counsel, in which counsel and the parent agree to substitute new counsel. (See Code Civ. Proc., § 284, subd. (1); E. Younger, Younger on California Motions (2004 ed.) § 17:9, p. 484.)
In construing the statute, this court strives “to ascertain the intent of the Legislature so as to effectuate the purpose of the law. ‘In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. . . . The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.]’” (Janet O. v. Superior Court, supra, 42 Cal.App.4th at p. 1063, quoting Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.)
I read the phrase “upon the substitution of counsel” to refer to consensual substitutions. Section 317, subdivision (d) was intended to “assure[] vertical representation throughout the dependency proceedings . . . .” (In re Angel W. (2001) 93 Cal.App.4th 1074, 1083; In re Andrew S. (1994) 27 Cal.App.4th 541, 547; see also In re Jessie C., supra, 71 Cal.App.4th at p. 1490, fn. 5.) That is, section 317, subdivision (d) confers a right to parents “to be represented by the same attorney (‘vertical representation’) unless that attorney [is] removed . . . .” (In re Andrew S., supra, 27 Cal.App.4th at pp. 546-547; see also Walter, Averting Revictimization of Children: State Funding Needed for Independent Counsel Representing Children in Juvenile Court (1999) 1 J. of the Center for Child. & Cts 45 [S.B. 243, which enacted section 317, “envisioned vertical representation for all parents and children”].) As explained in In re Jessie C., section 317, subdivision (d) was a legislative response “to deal with the problem that counsel was often appointed and then relieved and different counsel unfamiliar with the case appointed for later hearings.” (In re Jessie C., supra, 71 Cal.App.4th at p. 1490, fn. 5.) It thus would be illogical to construe section 317, subdivision (d) to permit the juvenile court to relieve counsel over a parent’s objection without cause merely “upon the substitution of counsel”—that is, to permit the very practice the Legislature sought to end by enacting that provision. I therefore read subdivision (d) to permit a trial court to relieve appointed counsel upon (1) the consensual substitution of counsel, or (2) for cause. Because mother did not consent to the substitution, the juvenile court could relieve Shirwo only for cause.
2. The Juvenile Court Lacked Cause to Relieve Shirwo
The juvenile court cited as cause to relieve Shirwo the juvenile court’s “new program” of appointing LADL attorneys to represent parents and the juvenile court’s belief that it would be “inappropriate” for mother to be represented by two attorneys in connection with different children. The administrative convenience of the juvenile court, however, is not good cause to sever, over the parent’s objection, an established attorney-client relationship in ongoing dependency proceedings. Although a parent desiring appointed representation in dependency proceedings is not entitled to appointment of any attorney he or she might choose, “once counsel is appointed to represent an indigent [parent], . . . the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the [parent.]” (Smith v. Superior Court (1968) 68 Cal.2d 547, 562.)
As our Supreme Court has recognized, the attorney-client relationship is an “an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney.” (Smith v. Superior Court, supra, 68 Cal.2d at p. 561.) This is particularly true when the issues involve the parent’s fitness to raise his or her own child, and whether or to what extent and under what conditions the parent may be able to maintain some involvement in the child’s life. (See People v. Jones (2004) 33 Cal.4th 234, 244 [in criminal case, “[t]he removal of an indigent defendant’s appointed counsel . . . poses a greater potential threat to the defendant’s constitutional right to counsel than does the refusal to appoint an attorney requested by the defendant, because the removal interferes with an attorney-client relationship that has already been established”]; see also Harris v. Superior Court (1977) 19 Cal.3d 786, 798 [abuse of discretion not to appoint counsel with whom client has “a close working relationship” and attorney has “an extensive background in various factual and legal matters which may well become relevant in the instant proceeding—a background which any other attorney appointed to the case would necessarily be called upon to acquire”].)
The leading case construing the “for cause” language of section 317, subdivision (d) is In re Tanya H. (1993) 17 Cal.App.4th 825. In that case, the juvenile court had instituted a policy of relieving appointed counsel for parents in every case “following the first Review of Permanency Planning Hearing (RPPH), unless good cause to the contrary is individually shown by any attorney seeking to remain appointed on the case.” (Id. at p. 830.) The Court of Appeal held that this policy violated section 317, subdivision (d) because, inter alia, the juvenile court’s administrative policy did not constitute “cause” for relieving a parent’s attorney. (Id. at 831, fn. 5.) The purpose of the statute, the court observed, was to provide counsel for parents who desired counsel and ensure that the attorney appointed by the juvenile court continued to represent the parent at all subsequent proceedings—that is, to provide “vertical representation” for parents. (Ibid.; see also In re Angel W., supra, 93 Cal.App.4th at p. 1083; In re Andrew S., supra, 27 Cal.App.4th at p. 547; In re Jessie C., supra, 71 Cal.App.4th at p. 1490, fn. 5.) “So viewed,” the court stated, “‘for cause’ must include some good reason personal to the individual sought to be removed [citation], one which affects or concerns the ability or fitness of the appointee to perform the duty imposed upon him [citations] or relates to and affects the administration of the office [citation]. Stated otherwise, ‘for cause’ means inefficiency, incompetency or other kindred disqualifications. [Citations.]” (In re Tanya H., supra, 17 Cal.App.4th at p. 831, fn. 5.) The court concluded, “The court’s financial problems cannot affect the decision to appoint counsel for an indigent parent and it would be anomalous to consider those problems—which do not concern the ability or fitness of the attorney to perform his duty—as ‘cause’ for removal. However sympathetic we may be to the juvenile court’s efforts to function in the midst of a fiscal crisis, we must follow the statute and defer to the Legislature the decision whether to amend section 317.” (Ibid.; see also Katheryn S. v. Superior Court (2000) 82 Cal.App.4th 958, 970-971 [mother’s failure to participate in proceedings was not cause to permit parent’s counsel to withdraw when fact that mother “was so concerned that she might lose [her child], she removed [the child] from the state and went into hiding for three years” demonstrated that she “desired” counsel]; In re Malcolm D., supra, 42 Cal.App.4th at p. 915 [counsel’s inability to contact parent not cause to permit counsel to withdraw unless counsel demonstrates that “the lack of contact adversely impacts his or her representation”].)
The interpretation of the “for cause” language in In re Tanya H., supra, 17 Cal.App.4th 825, is consistent with the rule in criminal proceedings. In criminal cases, “Counsel may . . . be relieved on the trial court’s own motion, over the objection of the defendant or his counsel, ‘to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings.’” (People v. Cole (2004) 33 Cal.4th 1158, 1187.)
The juvenile court made no finding, and there is no evidence in the record, that Shirwo’s representation had been inefficient or incompetent, or that the attorney-client relationship between Shirwo and mother had broken down or was otherwise impaired. To the contrary, both Shirwo and mother expressly stated to the juvenile court that they wished the relationship to continue. There was thus no cause to relieve Shirwo. As did the court in In re Tanya H., supra, 17 Cal.App.4th at p. 831, fn. 5, I believe that to permit the juvenile court to relieve counsel for a parent for administrative reasons wholly unrelated to some deficiency in the attorney’s representation or some impairment to the attorney-client relationship would be contrary to the purpose of section 417, subdivision (d) to “assure[] vertical representation throughout the dependency proceedings . . . .” (In re Angel W., supra, 93 Cal.App.4th at p. 1083.)
Our Supreme Court has recognized “the importance of the right to counsel of choice.” (People v. Ortiz (1990) 51 Cal.3d 975, 987; see People v. Gzikowski (1982) 32 Cal.3d 580, 586.) Indeed, when faced with an issue of disqualifying a lawyer, courts consider “the client’s right to counsel of their choice.” (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 586.) The Supreme Court has said that “[u]ltimately [disqualification motions] involve[] a conflict between the client’s right to counsel of his choice and the need to maintain ethical standards of professional responsibility.” (Comden v. Superior Court (1978) 20 Cal.3d 906, 915; see Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831, 840.) Here, there is no such conflict because there is no question of ethical standards of professional responsibility.
Furthermore, section 317, subdivision (d) provides that appointed counsel will only be relieved for cause. The juvenile court in this case, however, placed the burden on mother to show good cause why Shirwo should not be relieved. “There is no requirement in the statute that a parent establish . . . a continuing need for counsel.” (In re Tanya H., supra, 17 Cal.App.4th at pp. 831-832.) Moreover, mother’s “right [under subdivision (d)] was to be represented by the same attorney . . . unless that attorney was removed” for cause. (In re Andrew S., supra, 27 Cal.App.4th at pp. 546-547.) Nothing in the statute placed the burden on mother to show why her counsel should not be relieved. The juvenile court thus abused its discretion when it relieved Shirwo over mother’s objection.
E. Remedy
Mother requests that, in the event the juvenile court’s order is reversed, this court remand the matter with instructions to the juvenile court to permit mother to choose whether Shirwo should be reinstated as her attorney, or whether her representation by her LADL attorney should continue. Because proceedings in the juvenile court have continued while this appeal was pending, and because mother also has a right pursuant to section 317, subdivision (d) to continue to be represented by her new appointed attorney, mother’s suggestion is appropriate. The juvenile court should be instructed to inquire of mother on remand whether she wishes to be represented by Shirwo or LADL and, absent a finding of good cause not to do so, to appoint counsel of mother’s choice to represent her.