Alameda Cnty. Soc. Servs. Agency v. M.B. (In re A.R.)

• Court: United States State Supreme Court (California)
• Citation: 276 Cal.Rptr.3d 761,11 Cal.5th 234,483 P.3d 881
• Decision Date: 05 April 2021
• Docket Number: S260928
• Parties: IN RE A.R., a Person Coming Under the Juvenile Court Law. Alameda County Social Services Agency, Plaintiff and Respondent, v. M.B., Defendant and Appellant.

11 Cal.5th 234
483 P.3d 881
276 Cal.Rptr.3d 761

IN RE A.R., a Person Coming Under the Juvenile Court Law.

Alameda County Social Services Agency, Plaintiff and Respondent,
v.
M.B., Defendant and Appellant.

S260928

Supreme Court of California.

April 5, 2021

Louise E. Collari, Danville, under appointment by the Supreme Court, for Defendant and Appellant.

Michael J. Levy and Catherine Blakemore, Sacramento, for California Commission on Access to Justice as Amicus Curiae on behalf of Defendant and Appellant.

Raymond A. Cardozo, San Francisco, Dennis A. Fischer, Santa Monica, Scott M. Reddie, Fresno, Robin Meadow, Robert Gerstein, Rex S. Heinke, Los Angeles, Kirk Jenkins, San Francisco, R. Rothschild, Robin B. Johansen, Sacramento; Colantuono, Highsmith & Whatley, Michael G. Colantuono, Pamela Graham, Pasadena; Law Offices of Robert S. Gerstein and Robert S. Gerstein for Academy of Appellate Lawyers as Amicus Curiae on behalf of Defendant and Appellant.

Stephanie G. Miller ; Deanna F. Lamb, Sonora; and Linda M. Fabian, San Diego, for California Appellate Projects Amicus Curiae on behalf of Defendant and Appellant.

Donna Ziegler, County Counsel, and Samantha N. Stonework-Hand, Deputy County Counsel, for Plaintiff and Respondent.

Anna L. Stuart, under appointment by the Supreme Court, for Minor A.R.

Opinion of the Court by Kruger, J.

When the juvenile court terminated M.B.’s parental rights to her minor child, M.B. promptly directed her court-appointed attorney to appeal. The attorney mistakenly filed the notice of appeal four days late, however, and the Court of Appeal dismissed M.B.’s appeal as untimely. The question presented is whether, as a result of her attorney's mistake, M.B. has irrevocably lost her right to appeal the termination of her parental rights. We conclude the answer is no. By statute, every parent facing the termination of parental rights is entitled to the assistance of competent counsel ( Welf. & Inst. Code, §§ 317, 317.5, 366.26, subd. (f)(2) ), as well as the right to appeal an adverse ruling ( id. , § 366.26, subd. (i)(1) ). When an attorney fails to file a timely appeal in accordance with a client's instructions, the parent may seek relief based on the attorney's failure to provide competent representation. Because time is of the essence in matters affecting children's long-term placement, whether relief is granted will depend on the parent's promptness and diligence in pursuing the appeal.

I.

M.B. gave birth to A.R. in 2016. At the time, M.B. herself was still a minor. Less than a year later, the Alameda County Social Services Agency (Agency) filed a petition under Welfare and Institutions Code section 300 to have A.R. declared a dependent of the court. The operative petition alleged that M.B. had mental health concerns, such as depression, that impeded her ability to care for her child. The juvenile court sustained the petition. Although the court attempted to place A.R. with M.B., M.B. later raised concerns about her ability to care for A.R. while she finished high school. The court ordered A.R. placed

276 Cal.Rptr.3d 766

in a foster home while M.B. participated in family reunification services.

Several months later, the court entered an order terminating reunification services. The court noted that it was encouraged by the mother's recent progress, however, and expressed openness to M.B. bringing a future petition under Welfare and Institutions Code section 388 ( section 388 ) to modify the order. M.B.’s court-appointed attorney prepared a record documenting M.B.’s progress as a parent and her bond with A.R. The court later found M.B. had made a prima facie case that circumstances had changed so as to warrant modification and accordingly granted her an evidentiary hearing.

Two years after A.R. was first declared a dependent, the juvenile court scheduled a hearing to determine whether to grant M.B.’s section 388 modification petition or, in

483 P.3d 886

the alternative, whether to terminate M.B.’s parental rights. (See Welf. & Inst. Code, § 366.26 ( section 366.26 ).) Although M.B. had planned to testify in support of her section 388 petition, on the day of the hearing she had a health emergency that landed her in the emergency room and was unable to attend. Because her original court-appointed attorney was in the process of quitting her job at the time, a new attorney participated in the hearing on M.B.’s behalf.

At the hearing, the court rejected M.B.’s section 388 modification petition, having excluded M.B.’s supporting evidence on technical grounds. The court then turned to the question of whether to permanently sever M.B.’s parental rights. M.B.’s attorney urged the court instead to apply the beneficial parental relationship exception to the termination of parental rights. ( § 366.26, subd. (c)(1)(B)(i).) The court rejected that argument and entered an order terminating M.B.’s parental rights.

Five days after the juvenile court ruled against her, M.B. asked her new court-appointed counsel to file an appeal. Her attorney, however, forgot about the request until it was too late: The attorney did not file a notice of appeal on her client's behalf until four days after the 60-day filing deadline had passed.

The Court of Appeal initially docketed M.B.’s untimely appeal. Some months later, M.B. timely filed her opening brief on the merits along with an application for relief from default. In the application, M.B. acknowledged her counsel's error in filing the notice of appeal and asked the court to consider the notice of appeal to have been timely filed. The Court of Appeal denied the application and dismissed M.B.’s appeal for lack of jurisdiction. M.B. then filed a petition for a writ of habeas corpus in the Court of Appeal, alleging that her attorney's substandard performance had denied her the right to pursue an appeal. The court also denied M.B.’s habeas corpus petition, albeit without prejudice to refiling it in the trial court.

We granted review, directing the parties to address two issues: (1) whether a parent has the right to challenge her counsel's failure to file a timely notice of appeal from an order terminating her parental rights, and (2) if she has such a right, the proper procedures for raising such a claim.

II.

A.

The juvenile dependency law is designed "to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." ( Welf. & Inst. Code, § 300.2.) The law

276 Cal.Rptr.3d 767

authorizes a court to declare a child facing abuse or neglect to be a dependent of the court. (Id. , § 300.) Once the child has been declared a dependent, "the statutory scheme is designed to allow retention of parental rights to the greatest degree consistent with the child's safety and welfare, and to return full custody and control to the parents or guardians if, and as soon as, the circumstances warrant." ( In re Ethan C. (2012) 54 Cal.4th 610, 625, 143 Cal.Rptr.3d 565, 279 P.3d 1052.) "[T]he general rule is that when a dependent child is removed from the parent's or guardian's physical custody, child welfare services, including family reunification services, must be offered." ( Id. at p. 626, 143 Cal.Rptr.3d 565, 279 P.3d 1052.) The court then conducts periodic check-ins to determine whether the child may safely be returned to the parent or guardian. ( Ibid. ) If the answer is no, the court may decide to terminate parental rights and order that the child be placed for adoption. ( Ibid. ; see § 366.26, subds. (b)(1), (c)(1) ; see generally Ethan C. , at pp. 623–626, 143 Cal.Rptr.3d 565, 279 P.3d 1052 ; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247–249, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)

While terminating parental rights is sometimes necessary to secure the child's long-term welfare, it is a uniquely serious step — one widely recognized as ranking "among the most severe forms of state action." ( M. L. B. v. S. L. J. (1996) 519 U.S. 102, 128, 117 S.Ct. 555, 136 L.Ed.2d 473.) To guard against the risk that parental rights

483 P.3d 887

will be terminated in error, the Legislature has enacted several significant procedural protections. ( In re James F. (2008) 42 Cal.4th 901, 904, 70 Cal.Rptr.3d 358, 174 P.3d 180.) Two of those protections are central to the issue we confront in this case.

The first protection is the right to counsel. Depending on the circumstances of the case, constitutional due process sometimes demands the appointment of counsel for a parent facing the termination of rights. ( Lassiter v. Department of Social Services (1981) 452 U.S. 18, 32, 101 S.Ct. 2153, 68 L.Ed.2d 640 ; In re Sade C. (1996) 13 Cal.4th 952, 984, 55 Cal.Rptr.2d 771, 920 P.2d 716.) But even when court-appointed counsel may not be constitutionally required, California statutory law has long required the appointment of counsel in connection with parental rights termination proceedings. ( Welf. & Inst. Code, §§...