Jacqueline H., In re

• Decision Date: 27 April 1978
• Citation: 577 P.2d 683,145 Cal.Rptr. 548,21 Cal.3d 170
• Court: California Supreme Court
• Parties: , 577 P.2d 683 In re JACQUELINE H., a Minor. COUNTY OF LOS ANGELES, DEPARTMENT OF ADOPTIONS, Petitioner and Respondent, v. MARETTA M., Objector and Appellant. L.A. 30862.

Page 548

145 Cal.Rptr. 548

21 Cal.3d 170, 577 P.2d 683

In re JACQUELINE H., a Minor.

COUNTY OF LOS ANGELES, DEPARTMENT OF ADOPTIONS, Petitioner and Respondent, v. MARETTA M., Objector and Appellant.

L.A. 30862.

Supreme Court of California, In Bank.

April 27, 1978.

Thomas A. Diamond and Maureen S. Stubbs, Los Angeles, for objector and appellant.

John H. Larson, County Counsel, and Lester J. Tolnai, Deputy County Counsel, Los Angeles, for petitioner and respondent.

BIRD, Chief Justice.

Maretta M. seeks relief from this court after the Court of Appeal dismissed her appeal from an order of the superior court terminating her parental rights to her daughter, Jacqueline H. Two issues are presented: (1) Is an indigent person, appealing from a judgment following a hearing pursuant to Civil Code section 232, entitled to appointed counsel? (2) Does failure to advise an indigent appellant of her right to counsel excuse her failure to timely file an opening brief?

I

On October 16, 1975, the Los Angeles County Department of Adoptions initiated proceedings pursuant to Civil Code section 232 et seq. to permanently terminate appellant's parental rights and custody of her daughter, Jacqueline H. The superior court appointed counsel to represent appellant because of her indigency. (Civ.Code, § 237.5.) After a hearing on June 23, 1976, appellant's parental rights were terminated by order of the superior court. A timely notice of appeal from that order and a request for transcripts without cost to appellant was filed by her court-appointed counsel. (Crespo v. Superior Court (1974) 41 Cal.App.3d 115, 115 Cal.Rptr. 681.) On November 10, 1976, appellant's trial counsel substituted appellant in propria persona for himself because he was unable to handle her appeal.

The record on appeal was filed on January 3, 1977, and the next day a postcard was sent to appellant by the Court of Appeal at her last known address informing her that an opening brief was due in 30 days. (Rule 16, Cal.Rules of Court.) The postcard was forwarded by the post office "c/o Rev. Jos. Hughes, 8252 Melrose Avenue, Los Angeles, CA 90046," but was returned to the court stamped "MOVED LEFT NO ADDRESS." On April 21, 1977, the appeal was dismissed and a dismissal letter was mailed to appellant at her last known address. Appellant received this letter and requested on May 17, 1977, that the order of dismissal be vacated and that counsel be appointed to represent her. She informed the court that she had been unaware of her right to appointed counsel on appeal. Following the Court of Appeal's denial of her request to set aside the dismissal, this court granted a hearing.

II

Appellant contends that if she had been advised of her right to counsel on appeal, she would have secured counsel and an opening brief would have been timely filed.

Civil Code section 232 et seq. provide for proceedings whereby a minor child can be taken from the custody and control of the natural parents if they will not consent to the adoption of the child. Originally included in the Welfare and Institutions Code, these sections were transferred to the Civil Code in 1961 as part of a revision of the Juvenile Court Law. (Stats.1961, ch. 1616, § 4, p. 3504; see 36 State Bar J. 862, 864.) ¹ No provision was made for the appointment of counsel for indigent parents in section 232 proceedings at that time. Subsequently, the Legislature recognized that various safeguards, which had been included in the Welfare and Institutions Code, were omitted when the statutes were transferred. Accordingly, in 1965 the Legislature enacted several additions to section 232 et seq. to correct these omissions. Section 237.5, ² was added to provide several procedural safeguards and to mandate the appointment of counsel for indigent parents in section 232 proceedings. Other additions provided for the liberal construction of the law to protect the interests of the child (Civ.Code, § 232.5), the confidentiality of documents (Civ.Code, § 233.6), and closed hearings. (Civ.Code, § 235.5; see Selected 1965 Code Legislation (Cont.Ed.Bar) pp. 46-47.)

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.

Civil Code section 232 sets forth only one of several different proceedings in which child custody may be determined and parental custody and control may be terminated. ³ (In re B. G. (1974) 11 Cal.3d 679, 696, 114 Cal.Rptr. 444, 523 P.2d 244; see Bodenheimer, The Multiplicity of Child Custody Proceedings Problems of California Law (1971) 23 Stan.L.Rev. 703, 704-705.) The proceedings most closely analogous to section 232 proceedings are dependency proceedings in juvenile court. (See Welf. & Inst.Code, § 300, formerly § 600.) In both cases the state or a state agency ordinarily initiates the proceeding, intervening as parens patriae to supplant the authority of the natural parents because of their alleged inability to care properly for the minor child. Since the objectives of these two sections are similar, Welfare and Institutions Code section 300 and related provisions have been used to clarify ambiguities in the language and procedures of section 232. (See, e. g., In re J. T. (1974) 40 Cal.App.3d 633, 638, 115 Cal.Rptr. 555; In re Baby Boy T. (1970) 9 Cal.App.3d 815, 819, 88 Cal.Rptr. 418.) However, an adverse judgment in a section 232 proceeding is far more serious than is one in a dependency proceeding. In the latter case, an adverse judgment leads only to a temporary loss of custody, not a permanent severance of the parent-child relationship (In re Robert P. (1976) 61 Cal.App.3d 310, 318, 132 Cal.Rptr. 5), whereas in the former a minor child is declared to be permanently free from parental custody and control and thus freed for adoption. ⁴

Appointment of counsel for indigent parents is presently authorized at all stages of proceedings brought under Welfare and Institutions Code section 300. Welfare and Institutions Code section 317 provides for the appointment of counsel by the juvenile court, and section 395 provides free transcripts for indigent appellants. Finally, in In re Simeth (1974) 40 Cal.App.3d 982, 115 Cal.Rptr. 617 the court held that implicit in the whole statutory scheme was the right of a parent to appointed counsel on appeal from an order adjudging her child to be a dependent child of the court. ⁵

The Legislature has recognized the greater severity of the parent's possible loss in section 232 proceedings as opposed to section 300 proceedings. It has mandated the appointment of counsel for indigent parents in the former case, but only authorized it in the latter. (Welf. & Inst.Code, § 317.) It would be anomalous indeed to find a right to the appointment of appellate counsel implicit in the latter proceeding but not in the former. (Cf. In re Cynthia K. (1977) 75 Cal.App.3d 81, 85, 141 Cal.Rptr. 875; see In re Norma M. (1975) 53 Cal.App.3d 344, 346, 125 Cal.Rptr. 721; and In re Rose G. (1976) 57 Cal.App.3d 406, 129 Cal.Rptr. 338 and In re Rodriguez (1973) 34 Cal.App.3d 510, 110 Cal.Rptr. 56 (where appellate counsel was appointed without discussion).)

The conclusion that an indigent appellant is entitled to appointed counsel on appeal in section 232 proceedings finds additional support in the rule applicable in adoption cases. After consent has initially been given for an adoption, a natural parent may request under Civil Code section 226a to withdraw consent. By statute, "(a)ny order of the court granting or withholding approval of a withdrawal of a consent to an adoption may be appealed from in the same manner as an order of the juvenile court declaring any person to be a ward of the juvenile court." (Civ.Code, § 226a.) The juvenile court law and rules provide for appointment of counsel for indigent appellants in those cases.

It bears emphasis that proceedings under section 232 are at least as critical for the parent as those under section 226a since not only may a parent lose a child, but the parent may be branded as unfit. Indeed "the involuntary termination of (the parent-child) relationship by state action must be viewed as a drastic remedy which should be resorted to only in extreme cases . . . ." (In re T. M. R. (1974) 41 Cal.App.3d 694, 703, 116 Cal.Rptr. 292, 298.) Thus, the need for appellate counsel is greater in a section 232 appeal than in a section 226a appeal. Further, the parent involved in section 232 proceedings has opposed the adoption of his or her child from the outset, whereas the parent in a section 226a case has initially given consent to the adoption. Failing to provide appointed appellate counsel in the former situation while providing it in the latter would in effect penalize the parent who has sought to contest an adoption from the outset and has maintained some relationship with the child.

For all of the foregoing reasons, this court concludes 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 section 232 proceedings. Accordingly, this court construes Civil Code sections 237.5 and 238 to require a reviewing court to appoint counsel for any indigent parent appealing from an order terminating parental rights pursuant to Civil Code section 232. ⁶ (Cf. Crespo v. Superior Court, supra, 41 Cal.App.3d 115, 118-119, 115 Cal.Rptr. 681, construing Civil Code sections 237.5 and 238 as authorizing free transcripts for indigent appellants in section 232 cases.)

The foregoing interpretation of section 237.5 renders it unnecessary for this court to reach appellant's arguments that she is constitutionally entitled to appointed counsel on appeal in a section 232 proceeding. This interpretation is consistent with this court's practice...