Bryce C., In re

Decision Date26 December 1995
Docket NumberNo. S040932,S040932
Citation48 Cal.Rptr.2d 120,12 Cal.4th 226,906 P.2d 1275
CourtCalifornia Supreme Court
Parties, 906 P.2d 1275, 95 Cal. Daily Op. Serv. 9868, 95 Daily Journal D.A.R. 17,094 In re BRYCE C., a Minor. VERNON S., Petitioner and Appellant, v. JEROME C., Objector and Respondent.

H. Dennis Beaver, Berkersfield and Ronald P. Kaplan, Los Angeles, for Petitioner and Appellant.

Bradley A. Bristow, under appointment by the Supreme Court, Sacramento, for Objector and Respondent.

No appearance for Minor.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Mary A. Roth, Deputy Attorney General, and Carol Ann White, Sacramento, as Amici Curiae, upon the request of the Supreme Court.

ARABIAN, Justice.

Family Code section 7895 provides that, upon request, an appellate court "shall" appoint counsel for an indigent "appellant" appealing "a judgment freeing a child who is a dependent child of the juvenile court from parental custody and control." The question here is whether an appellate court is required to appoint counsel for a respondent when the trial court refused to free the child from parental custody and control and the child was not a juvenile court dependent.

We conclude that Family Code section 7895 requires appellate courts to appoint counsel only for parents appealing a judgment freeing a child from their custody and control. Thus, respondent father in this case was not entitled, as of right, to appointed counsel. We also conclude, however, that appellate courts have discretion to appoint counsel for a parent in any other appeal in which the parent's custody and control of a child is at stake, and should exercise that discretion whenever the appearance of counsel may reasonably affect whether parental rights are terminated. Because the Court of Appeal here did not exercise that discretion, we remand the matter for that purpose.

I. PROCEDURAL HISTORY

The stepfather of a minor petitioned the superior court to declare the child free from the father's custody and control, and alleged that the father had abandoned the child. After taking evidence, the court found no abandonment, and denied the petition. The stepfather appealed. Represented by retained counsel, he filed an opening brief arguing that the finding of no abandonment was not supported by substantial evidence, and the court erred by failing to consider the best interests of the child.

The respondent father asked the Court of Appeal to appoint counsel for him. The court denied the request, finding that "respondent is not entitled to appointment of appellate counsel under Family Code section 7895 (former Civ.Code, § 237.7) in that the child was not declared free from parental custody and control, and the child was not a dependent child of the juvenile court." We granted the father's petition to review this order, and appointed counsel to represent him in this court.

The stepfather has declined to brief the question in this court, but we requested and received a letter brief from the Attorney General, who argues that appointment of counsel in a case such as this is discretionary.

II. DISCUSSION
A. Background

Family Code section 7800 et seq. establishes a proceeding "for the purpose of having a minor child declared free from the custody and control of either or both parents." (Fam.Code, § 7802.) 1 These proceedings are immensely important to the parent because a "declaration of freedom from parental custody and control pursuant to this part terminates all parental rights and responsibilities with regard to the child." (Fam.Code, § 7803.)

In In re Jacqueline H. (1978) 21 Cal.3d 170, 175, 177, 145 Cal.Rptr. 548, 577 P.2d 683 (Jacqueline H.) we interpreted a predecessor statutory scheme that did not expressly "provide for the appointment of [appellate] counsel" for indigent parents, and concluded "that 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 [former Civil Code] section 232 proceedings." (Italics in original.) Accordingly, we construed the statutes as impliedly requiring a "reviewing court to appoint counsel for any indigent parent appealing from an order terminating parental rights...." (Ibid.)

A few years after Jacqueline H., supra, 21 Cal.3d 170, 145 Cal.Rptr. 548, 577 P.2d 683, the Legislature enacted former Civil Code section 237.7 to expressly provide for appellate counsel. (Stats.1984, ch. 605, § 1, p. 2326.) The substance of that provision is now found in Family Code section 7895 (section 7895), which provides as pertinent:

"(a) Upon appeal from a judgment freeing a child who is a dependent child of the juvenile court from parental custody and control, the appellate court shall appoint counsel for the appellant as provided by this section.

"(b) Upon motion by the appellant and a finding that the appellant is unable to afford counsel, the appellate court shall appoint counsel for the indigent appellant, and appellant's counsel shall be provided a free copy of the reporter's and clerk's transcript...."

On its face, this statute appears to contain two prerequisites to the parent's right to appointed appellate counsel: (1) the parent must be the "appellant" from a judgment "freeing a child ... from parental custody and control"; and (2) the child must be a "dependent child of the juvenile court." Neither is met here: father is the respondent after the court refused to declare the child free from his custody and control, and the child was not a juvenile court dependent. The Court of Appeal relied on both of these circumstances to deny father appointed counsel.

Two recent Court of Appeal decisions construing this statute have reached conflicting conclusions. In both cases, the parent was the appellant but the child was not a juvenile court dependent. The first decision interpreted the statute strictly, and found no right to counsel. (In re Curtis S., supra, 25 Cal.App.4th 687, 30 Cal.Rptr.2d 739.) The second found there was a right to counsel. (Appellate Defenders, Inc. v. Cheri S. (1995) 35 Cal.App.4th 1819, 42 Cal.Rptr.2d 195 (Appellate Defenders ).) Neither confronted the question whether counsel must be appointed for a respondent parent whose rights were not terminated. As this latter question is dispositive here, we turn to it.

B. Parent as Respondent

The father argues that he is entitled to counsel under section 7895 even though he is a respondent and the trial court refused to declare the child free from his custody and control. We disagree. The statute specifically refers to a "judgment freeing a child ... from parental custody and control," and uses the word "appellant" to describe the person entitled to counsel no fewer than four times. Generally, the expression of some things in a statute implies the exclusion of others not expressed. (Gikas The court in Appellate Defenders, supra, 35 Cal.App.4th 1819, 42 Cal.Rptr.2d 195, examined the legislative history of former Civil Code section 237.7 and found "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 Mar. 19, 1984, at pp. 1-2 (Assembly Analysis); Legislative Analyst, Analysis of Sen. Bill No. 1912 (1983-1984 Reg.Sess.) as amended June 14, 1984, at p. 2 (Senate Analysis).)

                v. Zolin (1993) 6 Cal.4th 841, 852, 25 Cal.Rptr.2d 500, 863 P.2d 745.)   Here, the statute impliedly excludes the right to counsel to a respondent
                

"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.)" (Appellate Defenders, supra, 35 Cal.App.4th at pp. 1824-1825, 42 Cal.Rptr.2d 195, first italics in original, second added.)

The court found "no situation where an indigent person is entitled to appointed trial counsel and denied counsel on appeal from an adverse judgment.... If skilled counsel is needed to protect the indigent parent's rights at trial and preserve issues for appeal, it follows skilled appellate counsel should examine that record for claims of error." (Appellate Defenders, supra, 35 Cal.App.4th at p. 1826, 42 Cal.Rptr.2d 195.)

Father has asked us to judicially notice legislative materials concerning the bill that led to the enactment of what is today section 7895, including those considered in Appellate Defenders, supra, 35 Cal.App.4th 1819, 42 Cal.Rptr.2d 195. We grant the motion. (Evid.Code, §§ 452, subds. (c), (h), 459, subd. (a); Ford & Vlahos v. ITT Commercial Finance Corp. (1994) 8 Cal.4th 1220, 1226, 36 Cal.Rptr.2d 464, 885 P.2d 877.) As the court in Appellate Defenders, supra, 35 Cal.App.4th 1819, 42 Cal.Rptr.2d 195, found, the materials, including analyses of both the Senate and Assembly Committees on the Judiciary, show an intent to codify the rule of Jacqueline H., supra, 21 Cal.3d 170, 145 Cal.Rptr. 548, 577 P.2d 683. They do not, however, evidence an intent to expand that rule.

The legislative language and history both demonstrate an intent to require counsel for appellants, but not necessarily for respondents. Substantial reasons explain and justify a statute granting counsel to all appellants whose parental rights have been terminated but...

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