Crespo v. Superior Court

• Decision Date: 31 July 1974
• Citation: 41 Cal.App.3d 115,115 Cal.Rptr. 681
• Court: California Court of Appeals Court of Appeals
• Parties: Miriam CRESPO et al., Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent. LOS ANGELES COUNTY DEPARTMENT OF ADOPTIONS, Real Party in Interest. Civ. 43852.

Page 681

115 Cal.Rptr. 681

41 Cal.App.3d 115

Miriam CRESPO et al., Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent LOS ANGELES COUNTY DEPARTMENT OF ADOPTIONS, Real Party in Interest.

Civ. 43852.

Court of Appeal, Second District, Division 5, California.

July 31, 1974.

Daniel M. Luevano, Rosalyn M. Chapman, Philip L. Goar, Richard Alpert and W. Kenneth Rice, Los Angeles, for petitioner Miriam Crespo.

Ron Bain, Los Angeles, for petitioner Rafael Gerena.

John H. Larson, County Counsel, Paul T. Hanson, Dwight V. Nelsen, Deputy County Counsel, Los Angeles, for respondent.

John H. Larson, County Counsel, and Paul T. Hanson, Deputy County Counsel, Los Angeles, for real party in interest.

ASHBY, Associate Justice.

This is a petition for writ of mandate to compel the Superior Court of Los Angeles County to provide without cost to petitioners a clerk's transcript and reporter's transcript on appeal from a judgment of the superior court. Petitioners Miriam Crespo and Rafael Gerena are the natural parents of two minor children, Rose Lynn Gerena and Angelica Gerena. Pursuant to Civil Code section 232 real party in interest Los Angeles County Department of Adoptions filed a petition to have the minors freed from parental custody and control. The trial court found that the minors are persons described in former Civil Code section 232, subdivision (a) (now § 232, subd. (a)(1)), and that in the best interests and welfare of the minors they should be freed from the custody and control of their natural parents, and entered judgment accordingly.

Petitioners appealed from the judgment. Petitioners moved that they be provided a clerk's transcript and reporter's transcript without cost, alleging that they were indigent and could not afford the transcripts. ¹ The motion was supported by declarations under penalty of perjury by petitioners as to their indigency and by counsel as to his opinion that the appeal was meritorious and in good faith. (See Ferguson v. Keays, 4 Cal.3d 649, 658, 94 Cal.Rptr. 398, 484 P.2d 70.) Counsel further declared that a complete reporter's transcript was necessary in order to argue on appeal the issue of sufficiency of the evidence to support the judgment.

The trial court held a hearing on the motion for tree transcripts. At the hearing the deputy county counsel representing the Department of Adoptions stated that it would be extremely difficult to have a settled statement which would accurately represent the evidence to the appellate court, in light of the issue of sufficiency of the evidence being raised on appeal. He conceded that in the interests of justice there should be a complete transcript on appeal, but questioned whether the court had power to provide it. The trial judge also stated that the record on appeal should be in the form of a reporter's transcript and that it ought to be provided if the court had authority to do so. The court denied the motion however, in spite of the court's finding that petitioners were indigent, on the ground that it lacked authority to order free transcripts for an indigent on appeal, relying upon Rucker v. Superior Court, 104 Cal.App. 683, 286 P. 732.

Petitioners seek an order to the clerk of the superior court directing him to prepare or cause to be prepared a clerk's transcript and reporter's transcript on appeal without cost to petitioners. ² We conclude that the trial court has authority to order transcripts on appeal at county expense for indigent parents in a Civil Code section 232 proceeding, when such transcripts are necessary for appellate review.

A proceeding under Civil Code section 232 terminates the parents' interest in the custody and control of their child. In recognition of the importance of the parents' interest in their child the Legislature has declared a statutory policy that indigent parents in a section 232 proceeding are entitled to the appointment of counsel. (Civ.Code, § 237.5; ³ Adoption of Hinman 17 Cal.App.3d 211, 216, 94 Cal.Rptr. 487; In re Rodriguez, 34 Cal.App.3d 510, 514--515, 110 Cal.Rptr. 56.) The right to appeal a judgment in such a proceeding is preserved by Civil Code section 238, and in at least one case the Court of Appeal appointed counsel on appeal for an indigent parent. (In re Rodriguez, Supra at p. 511, 110 Cal.Rptr. 56.)

We do not believe that the Legislature intended to guarantee the indigent parents in a section 232 proceeding the right to appointed counsel and the right to appeal while at the same time impairing that right of appeal by permitting the indigent parents' inability to afford transcripts to preclude effective utilization of the right to appellate review. We construe sections 237.5 and 238 to authorize the trial court to order transcripts at county expense ⁴ for an indigent parent where such transcripts are necessary to appellate review. ⁵

In the absence of a specific statutory provision (Cf. Civ.Code, § 226a; Welf. & Inst.Code, § 800; Smith v. Superior Court, Cal.App., 115 Cal.Rptr. 666), the right of an indigent parent in a section 232 proceeding to a free transcript on appeal is limited to those cases where a transcript is actually necessary. There are many cases in which a complete reporter's transcript will not be necessary to assure effective appellate review, and an agreed or settled statement or partial reporter's transcript (see Cal.Rules of Court 4, 5, 6, and 7) will be adequate. (March v. Municipal Court, 7 Cal.3d 422, 427--429, 102 Cal.Rptr. 597, 498 P.2d 437; Draper v. Washington, 372 U.S. 487, 495--496, 83 S.Ct. 774, 9 L.Ed.2d 899, 905--906 (1963).) ⁶ The right to free transcripts should not be abused by profligate demands for unnecessary transcripts. (See Rucker v. Superior Court, Supra, 104 Cal.App. 683, 685, 286 P. 732; Mayer v. City of Chicago, 404 U.S. 189, 199--201, 92 S.Ct. 410, 30 L.Ed.2d 372, 381--382 (1971), (Burger, C.J., concurring).)

The trial court should make the determination in the first instance whether a complete transcript or requested partial transcripts are necessary for the appeal. The appellant and counsel should first make the same minimum showing of indigency and merit to the appeal required at the appellate level by Ferguson v. Keays, Supra, 4 Cal.3d 649, 658, 94 Cal.Rptr. 398, 403, 484 P.2d 70, 75. ⁷ Second, counsel should submit a declaration showing the grounds of the appeal and the reasons why a transcript is necessary for effective appellate review. Where the grounds of appeal make out a colorable need for a free transcript the burden shifts to the respondent to show that an alternative such as a settled statement will suffice. (March v. Municipal Court, Supra, 7 Cal.3d 422, 428--429, 102 Cal.Rptr. 597, 498 P.2d 437.) ⁸

In the instant case the declaration of need for the transcripts submitted by trial counsel was rather conclusionary. However, the trial court held a hearing on the motion and the trial judge was satisfied by the arguments made at the hearing that a transcript was necessary for the appeal. On the record before us it is unnecessary to remand this case to the trial court for any additional findings as to indigency or the need for a complete transcript.

We adhere to the general rule, relied upon by the trial court, that the ordinary civil litigant is not entitled to free transcripts on appeal at public expense. (Rucker v. Superior Court, Supra; Kaufman v. Brown, 106 Cal.App.2d 686, 688--689, 235 P.2d 632; Legg v. Superior Court, 156 Cal.App.2d 723, 724--725, 320 P.2d 227; Agnew v. Contractors Safety Assn., 216 Cal.App.2d 154, 156, 30 Cal.Rptr. 690, cert. den., 375 U.S. 976, 84 S.Ct. 496, 11 L.Ed.2d 421; Leslie v. Roe, Cal.App., 116 Cal.Rptr. 386.) But we find the general rule inapplicable here in light of the Legislature's policy, as indicated by Civil Code section 237.5, to protect the interests of indigent parents whose relation with their children is terminated by a Civil Code section 232 proceeding.

CONCLUSION

Let a peremptory writ of mandate issue to compel the superior court to order free transcripts for petitioners as requested. The trial court shall determine the manner of payment pursuant to Civil Code section 237.5.

STEPHENS, Acting P.J., and HASTINGS, J., concur.

1 Petitioner Crespo was represented at trial, apparently without compensation, by attorneys of the Center for Parental and Juvenile Justice and the Western Center on Law and Poverty. The trial court appointed counsel for petitioner Gerena. (Civ.Code, § 237.5.)

2 At the time of their motion in the trial court for free transcripts, petitioners also requested a stay of execution of the judgment and restoration of visitation rights pending appeal. The trial court ordered the Department of Adoptions and the minors' guardian not to finalize any adoption pending appeal but permitted the placement of the minors with prospective adopting parents. The court denied the request...