Appellate Defenders, Inc. v. Cheri S.

• Citation: 35 Cal.App.4th 1819,42 Cal.Rptr.2d 195
• Decision Date: 27 June 1995
• Docket Number: No. D023760,D023760
• Court: California Court of Appeals
• Parties: , 95 Daily Journal D.A.R. 8450 APPELLATE DEFENDERS, INC., Petitioner, v. CHERI S., Respondent.

Page 195

42 Cal.Rptr.2d 195

35 Cal.App.4th 1819, 95 Daily Journal D.A.R. 8450

APPELLATE DEFENDERS, INC., Petitioner, v. CHERI S., Respondent.

No. D023760.

Court of Appeal, Fourth District, Division 1, California.

June 27, 1995.

[35 Cal.App.4th 1821] Paul Bell, under appointment by the Court of Appeal, for petitioner.

Susan Bookout, for respondent.

FROEHLICH, Associate Justice.

In this petition for extraordinary relief, we determine an indigent parent is entitled to appointed appellate counsel where that parent's rights have been terminated in a proceeding freeing his or her child from custody and control (FAM.CODE, § 7822)¹ or a proceeding declaring that parent's consent unnecessary for a stepparent adoption. (§§ 9000, 8604.) Relying on In re Jacqueline H. (1978) 21 Cal.3d 170, 145 Cal.Rptr. 548, 577 P.2d 683, and the legislative history of section 7895, we conclude the right to an

effective appeal exists in all proceedings which terminate parental rights, whether the proceedings are initiated by private persons or the state. Accordingly we deny the petition to vacate the appointment of appellate counsel.

FACTUAL AND PROCEDURAL BACKGROUND

Allen B. (father) ² petitioned to declare his daughters Jenna B. and Falon B. free from the custody and control of their mother Cheri S. (mother) under section 7822, subdivision (a). ³ (San Diego Super.Ct. case no. A40433.) Father alleged mother left the girls in his custody for over one year without providing for their support and with the intent to abandon them. The parents had divorced in 1989, agreeing to joint legal custody of the girls, with physical custody to father. ⁴

In a report to the court, a Department of Social Services (Department) investigator thought father was circumventing the custody agreement. The investigator recommended against terminating mother's rights. ⁵

Father's current wife, Sherry B. (stepmother), then petitioned for a stepparent adoption under section 9000. ⁶ (San Diego Super.Ct. case no. A40597.) Stepmother alleged mother's consent to the adoption was not required because mother willfully failed to communicate and support the girls. A Department adoptions worker ⁷ reported the girls were "proper subjects for stepparent adoption" and recommended the petition be granted.

Mother opposed both petitions and the parties stipulated to a consolidated trial. Counsel was appointed for mother. On December 1, 1994, the court found mother willfully failed to provide financial support for Jenna and Falon for one year but did not intend to abandon them, denying father's petition to free the girls from their mother's custody and control. However the court found mother failed to communicate with Jenna and Falon for a period of one year and sustained the stepparent adoption petition, allowing the adoption to proceed without mother's consent under section 8604. ⁸ Mother Appellate Defenders, Inc. questioned our appointment of counsel for mother, pointing to In re Curtis S. (1994) 25 Cal.App.4th 687, 30 Cal.Rptr.2d 739. Curtis S. interprets section 7895 ⁹ as authorizing appointment of counsel on appeal after termination proceedings only for indigent parents whose children have been dependents of the juvenile court. We deemed the letter a petition for extraordinary relief to resolve the question and invited briefing and argument. We have taken judicial notice of the record on appeal. (Evid.Code, § 459.)

filed a notice of appeal from a judgment terminating her parental rights. (D022954.) She is indigent.

DISCUSSION

In In re Jacqueline H., supra, 21 Cal.3d 170, 145 Cal.Rptr. 548, 577 P.2d 683, our Supreme Court declared any indigent parent appealing from an order terminating his or her parental rights under Civil Code section 232 was entitled to appointed counsel. The appointment was warranted because of the severity in terminating the parent-child relationship and in recognition the Legislature authorized appellate counsel for indigent parents appealing from the less drastic order adjudging a child a dependent. (21 Cal.3d at pp. 173-177, 145 Cal.Rptr. 548, 577 P.2d 683.)

"Although Civil Code section 232 et seq. do not in express terms provide for the appointment of appellate counsel, the right to such appointment appears implicit in the Legislature's entire statutory scheme for the removal of children from the custody and control of their parents." (In re Jacqueline H., supra, 21 Cal.3d at p. 175, 145 Cal.Rptr. 548, 577 P.2d 683.) In passing, the court noted Civil Code section 232 proceedings were "ordinarily" initiated by the state, but made no distinction to deny appointment of counsel in privately initiated proceedings. (Ibid.) The court concluded "the Legislature could not have intended to withhold from an indigent parent the right to an effective appeal, and, therefore, the services of appellate counsel in section 232 proceedings." (Id. at p. 177, 145 Cal.Rptr. 548, 577 P.2d 683, italics in original.)

In 1984 the Legislature enacted Civil Code section 237.7, which provides: "Upon appeal from a judgment freeing a minor who is a dependent child of the juvenile court from parental custody and control, the appellate court shall appoint counsel for the [indigent] appellant...." (Stats.1984, ch. 605, § 1, p. 2326.) The section was repealed and reenacted without substantive change nearly a decade later under Family Code section 7895. (Stats.1992, ch. 162, No. 6 West's Cal.Legis. Service, at p. 564, operative Jan. 1, 1994; see ante, fn. 9.)

Applying Civil Code section 237.7, the court in In re Curtis S., supra, 25 Cal.App.4th 687, 30 Cal.Rptr.2d 739, interpreted the section as authorizing appointed counsel on appeal only if the child freed from the custody and control of a parent was a juvenile court dependent. In Curtis S. the child's grandparents initiated the proceeding to free him from his father's custody and control, based on abandonment. On appeal from the termination of parental rights, the The court noted Civil Code section 237.7 was enacted after Jacqueline H. and reasoned the Legislature intended to restrict the right to appointed appellate counsel, by the language of the statute. (Id. at p. 692, 30 Cal.Rptr.2d 739.) Equal protection was not a concern for the Curtis S. court where the parents of dependent children would have a right to counsel and the parents of non-dependent children would not. Similarly the court saw no due process violation where the state, "with all of the legal and financial resources available to it, is not the respondent." (Id. at p. 692, 30 Cal.Rptr.2d 739.) The court concluded there "is nothing fundamentally unfair about an appeal from a termination order in a private section 232 action in which the appealing parent either retains counsel or appears in propria persona before the appellate court." (Id. at p. 693, 30 Cal.Rptr.2d 739.)

appellate court denied the indigent father appointed counsel, concluding it lacked appointment authority where a private person had initiated the termination proceedings. (25 Cal.App.4th at pp. 691-692, 30 Cal.Rptr.2d 739.)

We disagree with Curtis S. In examining the legislative history of section 237.7, we find no intent by the Legislature to abrogate or restrict the right to appellate counsel established by Jacqueline H. Rather, the Senate and Assembly Committees on the Judiciary analyzed the legislation as codifying Jacqueline H., requiring reviewing courts to appoint counsel for any indigent parent whose parental rights were terminated. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1912 (1983-1984 Reg. Sess.) as amended March 19, 1984, at pp. 1-2 (Assem. Analysis); Legislative Analyst, Analysis of Sen. Bill No. 1912 (1983-1984 Reg. Sess.) as amended June 14, 1984, at p. 2 (Sen. Analysis).)

The stated need for codification was that " 'confusion and delays' result when rights are extended by the courts rather than by statute." (Sen. Analysis, supra, at p. 3) Moreover, the Assembly analysis explained support for the legislation as follows: "[T]he fundamental nature of parental rights mandates protection by the state of familial rights throughout all phases of termination proceedings. Such protection is critical where indigency might preclude any appeal, or any effective appeal, by an impoverished parent...." (Assem. Analysis, supra, at p. 3)

We interpret the language of section 7895 as affirming the right to appointed appellate counsel whenever a state-initiated dependency proceeding results in the termination of parental rights. The statute does not limit the long-established right of other indigent parents to appellate counsel upon termination of rights in adoption proceedings.

The reference to "dependent child" in Civil Code section 237.7 likely resulted from the Legislature's concern at that time for the inordinate delay and expense of continuing children in foster care pending finality of their cases. In the same bill, the Legislature established calendar preference for appeals in cases where the dependent child was freed from custody and control of a parent. ¹⁰ The Senate analysis noted "granting a calendar preference to these actions would result in savings to taxpayers, for in many instances children receive AFDC payments until their adoption is final." (Sen. Analysis, supra, at p. 4.)

Since the time of Jacqueline H., the termination of parental rights of dependent children no longer proceeds under the Civil Code, but follows the comprehensive dependency scheme under Welfare and Institutions Code section 300 et seq. (Stats.1987, ch. 1485, § 47, pp. 5638-5642.) Actions to free non-dependent children from the custody and control of their parents continue under section Although the Legislature moved termination proceedings in reorganizing codes, we believe the reasoning expressed in Jacqueline H. continues to apply. The indigent parent has an express right to appointed trial counsel in a termination of parental rights proceeding. (§ 7862.) ¹³ "It follows...