In re JW

• Decision Date: 14 November 2002
• Docket Number: No. S100745.,S100745.
• Citation: 57 P.3d 363,126 Cal.Rptr.2d 897,29 Cal.4th 200
• Court: California Supreme Court
• Parties: In re J.W, a Minor. Walter W, Petitioner and Respondent, v. Jacqueline W, Objector and Appellant.

126 Cal.Rptr.2d 897

29 Cal.4th 200

57 P.3d 363

In re J.W, a Minor.

Walter W, Petitioner and Respondent, v. Jacqueline W, Objector and Appellant.

No. S100745.

Supreme Court of California.

November 14, 2002.

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

Robert Navarro, Fresno, under appointment by the Supreme Court, for Petitioner and Respondent.

KENNARD, J.

In 1978, this court held that a reviewing court is required "to appoint counsel for any indigent parent appealing from an order terminating parental rights pursuant to Civil Code [former] section 232." (In re Jacqueline H. (1978) 21 Cal.3d 170, 177, 145 Cal.Rptr. 548, 577 P.2d 683, fn. omitted, italics added (Jacqueline H.).) We concluded that an indigent parent's right to appointed appellate counsel was "implicit in the Legislature's entire statutory scheme for the removal of children from the custody and control of their parents." (Id. at p. 175, 145 Cal.Rptr. 548, 577 P.2d 683.) In 1984, the Legislature enacted a statute requiring a reviewing court to appoint counsel for an indigent parent "[u]pon appeal from a judgment freeing a minor who is a dependent child of the juvenile court from parental custody and control...." (Civ.Code, former § 237.7 [reenacted in 1992, operative 1994, as Fam. Code, § 7895], italics added.)

At issue here is whether a reviewing court is required to appoint counsel for an indigent parent on an appeal from a judgment freeing from parental custody and control a child who is not a dependent child of the juvenile court. The issue is one that we have previously noted without deciding (In re Bryce C. (1995) 12 Cal.4th 226, 233, 48 Cal.Rptr.2d 120, 906 P.2d 1275 (Bryce C.)), and on which the Courts of Appeal have published conflicting decisions (compare In re Curtis S. (1994) 25 Cal. App.4th 687, 30 Cal.Rptr.2d 739 (Curtis S.) [no right to appointed appellate counsel] with Appellate Defenders, Inc. v. Cheri S. (1995) 35 Cal.App.4th 1819, 42 Cal.Rptr.2d 195 (Appellate Defenders) [expressly disagreeing with Curtis S.]).

We conclude that any indigent parent appealing a judgment terminating parental rights in a proceeding to free a child from parental custody and control is entitled to counsel. This court so held in Jacqueline H., supra, 21 Cal.3d 170, 145 Cal.Rptr. 548, 577 P.2d 683, and a thorough review of the legislative history of the statutory provision that is now Family Code section 7895 reveals no evidence of a legislative intent to restrict or abrogate that holding. Although the statute on its face might appear to restrict the right to appointed appellate counsel to parents of juvenile court dependents, enforcement of that apparent limitation would render the statute a nullity because, since January 1, 1989, parental rights in juvenile court dependents are now terminated in juvenile court dependency proceedings under the Welfare and Institutions Code rather than in proceedings under the Family Code to free a child from parental custody and control. To avoid rendering Family Code section 7895 entirely useless, we construe it as establishing a right to appointed appellate counsel for any indigent parent appealing from a judgment freeing a child from parental custody and control.

I. Factual Background

On January 24, 2000, father, Walter W., petitioned under Family Code section 7822 for a judgment declaring his minor son, J. W., free from the custody and control of the son's mother, Jacqueline W. The father alleged that the mother had left the child in his custody since February 1995, without supporting or communicating with the child. The superior court appointed counsel to represent the mother in the lawsuit. On December 19, 2000, Family Court Services submitted an investigation report recommending that the superior court grant the petition. The superior court held a two-day contested hearing that ended on April 27, 2001, after which the court announced its decision to declare the child free from the mother's custody and control and to terminate her parental rights. On June 13, 2001, the court entered judgment, consistent with its announced decision, terminating the mother's parental rights.

The mother appealed and requested appointment of appellate counsel under Family Code section 7895, which requires a reviewing court to appoint counsel for an indigent parent "[u]pon appeal from a judgment freeing a child who is a dependent child of the juvenile court from parental custody and control." On July 13, 2001, the Court of Appeal for the Fifth Appellate District by order appointed appellate counsel for the mother, but six days later the court vacated that order as improvidently granted, stating that because the child was not a juvenile court dependent, the mother did not have an automatic right to appellate counsel. The court allowed the mother to apply for appointed counsel by providing a financial declaration together with a written explanation of why she needed counsel and what issues she expected to raise on appeal. On August 17, 2001, the court denied the mother's application for appointed counsel "for lack of good cause shown."

The mother petitioned this court for review of the Court of Appeal's order denying appointed counsel to represent her on her appeal from the judgment terminating her parental rights in her son. We granted her petition for review and appointed counsel to represent her in this court.

II. Legal Background

A. Jacqueline H.

In Jacqueline H., supra, 21 Cal.3d 170, 145 Cal.Rptr. 548, 577 P.2d 683, a county adoption agency petitioned under former section 232 of the Civil Code (the predecessor of current section 7822 of the Family Code) to terminate a mother's parental rights in her daughter. The superior court appointed an attorney to represent the mother, who was indigent. After a contested hearing, the court granted the petition and entered a judgment terminating the mother's parental rights. The mother's appointed trial attorney helped her file a notice of appeal and then withdrew from the case. (Jacqueline H., supra, at p. 173, 145 Cal.Rptr. 548, 577 P.2d 683.)

When the mother failed to submit an opening brief, the Court of Appeal dismissed her appeal. The mother then requested that the Court of Appeal vacate the dismissal and appoint counsel to represent her. After the Court of Appeal denied her request, this court granted her petition for hearing. (Jacqueline H., supra, 21 Cal.3d at p. 173, 145 Cal.Rptr. 548, 577 P.2d 683.)

In a unanimous opinion, we held that a reviewing court is required "to appoint counsel for any indigent parent appealing from an order terminating parental rights pursuant to Civil Code [former] section 232." (Jacqueline H., supra, 21 Cal.3d at p. 177, 145 Cal.Rptr. 548, 577 P.2d 683, fn. omitted, italics added.) We concluded that the right to appellate counsel was "implicit in the Legislature's entire statutory scheme for the removal of children from the custody and control of their parents." (Id. at p. 175, 145 Cal.Rptr. 548, 577 P.2d 683.) More particularly, we construed former section 237.5 of the Civil Code (expressly providing for appointment of trial counsel for indigent parents in proceedings to remove children from their custody and control) and former section 238 of the Civil Code (describing the effect of a judgment freeing a minor from a parent's custody and control) as implicitly giving indigent parents a right to appointment of appellate counsel. (Jacqueline H., supra, at p. 177, 145 Cal.Rptr. 548, 577 P.2d 683.)

B. Enactment of Former Section 237.7 of the Civil Code

In 1984, some six years after this court's decision in Jacqueline H., supra, 21 Cal.3d 170, 145 Cal.Rptr. 548,577 P.2d 683, the Legislature enacted former section 237.7 of the Civil Code. (Stats.1984, ch. 605, § 1, p. 2326.) It provided: "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 appellant as provided by this section. [¶] 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. All of those costs shall be a charge against the state." (Italics added; see now Fam.Code, § 7895, subds. (a), (b).)

C. Modification of Procedure For Terminating Parental Rights in Dependent Children of the Juvenile Court

In 1987, as part of a comprehensive revision of laws affecting children, the Legislature modified the procedure for terminating parental rights in dependent children of the juvenile court. The Legislature "eliminated the need to file a separate civil action pursuant to Civil Code [former] section 232 to terminate parental rights and provided that all termination proceedings for children who are dependents of the court are to be heard in the juvenile court as part of the regular review process." (In re Marilyn H. (1993) 5 Cal.4th 295, 303, 19 Cal.Rptr.2d 544, 851 P.2d 826, italics added [discussing Stats. 1987, ch. 1485, p. 5598]; see Welf. & Inst. Code, § 366.26.) The new scheme applies to children adjudged dependent on or after January 1, 1989. (In re Marilyn H., supra, at p. 303, 19 Cal.Rptr.2d 544, 851 P.2d 826.)

D. Enactment Of The Family Code

In 1992, the Legislature enacted the Family Code, with an effective date of January 1, 1994. (Stats.1992, ch. 162, p. 463 et seq.) In the process, the Legislature repealed the sections of the Civil Code governing actions to free a child from parental custody and control (Stats. 1992, ch. 162, § 2, p. 464) and reenacted these provisions without substantive change as Family Code section 7800 and following (Stats.1992, ch. 162, § 10, pp. 662-673). With one minor, nonsubstantive change, the Legislature reenacted the text of former section 237.7 of the Civil Code,...