L. A. Cnty. Dep't of Children & Family Servs. v. E.M. (In re Andrew M.), B294704
| Court | California Court of Appeals |
| Writing for the Court | DHANIDINA, J. |
| Citation | 260 Cal.Rptr.3d 193,46 Cal.App.5th 859 |
| Parties | IN RE ANDREW M., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. E.M., JR., Defendant and Appellant. |
| Docket Number | B294704 |
| Decision Date | 20 March 2020 |
46 Cal.App.5th 859
260 Cal.Rptr.3d 193
IN RE ANDREW M., a Person Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
v.
E.M., JR., Defendant and Appellant.
B294704
Court of Appeal, Second District, Division 3, California.
Filed March 20, 2020
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
DHANIDINA, J.
E.M., Jr., (father) appeals from the order of the juvenile court taking jurisdiction over his son, Andrew M. He contends the court erred by failing to appoint counsel for him, despite his numerous requests. We agree and reverse the order with directions.
BACKGROUND
I. The dependency of Andrew’s older brother, E.M.
In 2017, the juvenile court declared Andrew’s older brother E.M. a dependent based on a petition alleging that father and mother engaged in domestic violence in E.M.’s presence, both parents abused marijuana, and mother abused methamphetamines. The court ordered E.M. placed with father under the supervision of the Department of Children and Family Services (DCFS) and ordered father into a program of family maintenance.
Andrew was born at the end of the same month. Father lived with both children in an apartment upstairs from mother and was complying with E.M.’s case plan. Two months after Andrew’s birth, both parents were arrested. Father arranged for maternal aunt to live in his apartment and take care of E.M. and Andrew. He then filled out an "affidavit with consent" and asked DCFS to place his children with maternal aunt or paternal grandmother.
In August 2017, DCFS filed an original petition ( Welf. & Inst. Code, § 300, subds. (a) & (b)(1) )1 on behalf of Andrew and filed a subsequent petition on behalf of E.M. (§ 342).
II. There is no evidence the juvenile court appointed father an attorney for Andrew’s detention hearing.
A. The August 8, 2017 hearing
Father was not notified of the August 8, 2017 detention hearing for both of his sons.
His attorney in E.M.’s case appeared on father’s behalf, but only on E.M.’s subsequent petition. The juvenile court granted that attorney’s request to continue Andrew’s detention hearing, to enable father to be brought to the hearing where the court would, among other things, consider the question of appointment of counsel for him. (See § 316; Seiser & Kumli,
Cal. Juvenile Courts Practice and Procedures (2019) § 2.40 (Seiser & Kumli).) The court detained both Andrew and E.M., scheduled father’s arraignment hearing2 on Andrew’s petition, and set a later date for the children’s jurisdiction hearing.
In October 2017, father was sentenced to 25 years in prison.
B. The October 25, 2017 hearing
On October 25, 2017, the juvenile court offered to appoint father’s attorney in E.M.’s case to represent father on Andrew’s petition. Counsel explained that father had not yet been arraigned on Andrew’s petition, and so such an appointment would be premature. The court set November 20, 2017 for father’s detention hearing and ordered him removed from jail.
C. The November 20, 2017 hearing
An unsigned, undated form JV-451, the prisoner’s statement regarding appearance at hearing affecting parental rights, which had been sent to father before the November 20, 2017 hearing, has the boxes checked requesting appointment of an attorney and waiving the right to appear. On November 13, 2017, father executed a JV-451 form waiving his right to appear at the November 20, 2017 hearing, but leaving unchecked the boxes indicating that (1) he understood he had a right to representation, and (2) already had representation, (3) wanted representation, or (4) declined representation "at this hearing."
On November 20, 2017, there were no appearances and so the juvenile court trailed the case to the following day. No appearances were made on November 21. The court "set[ ] a further continuance," to an unspecified date "[d]ue to Court congestion," while noting that January 17, 2018 remained the date for the jurisdiction hearing. The court then continued the January 17, 2018 jurisdiction hearing so that father could be brought into court.
D. The February 8, 2018 hearing
In advance of the scheduled arraignment hearing on February 8, 2018, father signed a JV-451 form requesting appointment of an attorney and
indicating he wanted to appear. There is no record of what occurred on February 8, 2018, but no attorney was appointed for father.
III. The juvenile court did not appoint counsel for Andrew’s jurisdiction hearing.
The juvenile court scheduled the jurisdiction hearing six times from April 2018 to November 20, 2018. The court continued each hearing and ordered that father be brought to court. In advance of four of the hearings, father executed JV-451 forms requesting that an attorney be appointed to represent him and declining to appear.
Father declined representation before two of the hearings scheduled in June 2018.
The juvenile court finally held the jurisdiction hearing on November 20, 2018. Father again requested representation at that hearing but declined to appear. Without appointing counsel for father, the juvenile court found him to be Andrew’s biological father and sustained the petition declaring Andrew to be described by section 300, subdivision (b). The court awarded father monitored visitation. Father filed two notices of appeal.3
DISCUSSION
I. The failure to appoint an attorney for father was error.
A juvenile court must appoint counsel for an indigent parent when the agency recommends that the child be placed in out-of-home care, "unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section." (§ 317, subd. (b), italics added.) The representation shall continue unless the juvenile court relieves counsel. (Id ., subd. (d).)
Other statutes direct the juvenile court to address the appointment of counsel for parents. The court must notify parents of the right to representation at the initial or detention hearing (§ 316; see Cal. Rules of Court, rule 5.534(d)(1)(B) ) and shall appoint counsel at the beginning of the hearing on a petition, if a parent "desires to be represented by counsel" and cannot afford one. (§ 353.)
Generally, however, counsel is only to be appointed for an indigent parent when that parent "appears and requests such appointment or otherwise
communicates to the court such a desire ." (Seiser & Kumli, supra , § 2.61, italics added.) A waiver of the right to counsel must be made knowingly and intelligently (§ 317, subd. (b)), whereas to obligate the juvenile court to appoint counsel, the indigent parent need only give "some manifestation ... that he or she wants representation." ( In re Ebony W . (1996) 47 Cal.App.4th 1643, 1647, 55 Cal.Rptr.2d 337.) Section 317 merely "requires the indigent parent to communicate in some fashion his or her desire for representation before the juvenile court is obligated to appoint counsel." ( Ebony W. , at p. 1647, 55 Cal.Rptr.2d 337, italics added.)
With respect to incarcerated parents in particular, Penal Code section 2625, subdivision (d) bars the adjudication of a section 300 petition without the physical presence of both the incarcerated parent and his or her counsel, unless the parent waives the right to attend. ( In re Jesusa V . (2004) 32...
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