L. A. Cnty. Dep't of Children & Family Servs. v. E.M. (In re Andrew M.)

• Decision Date: 20 March 2020
• Docket Number: B294704
• Court: California Court of Appeals Court of Appeals
• 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.

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 Cal.4th 588, 621–624, 10 Cal.Rptr.3d 205, 85 P.3d 2.) Thus, an incarcerated parent may waive his or her appearance, but the juvenile court may only adjudicate the petition if that parent has representation at the hearing. ( Pen. Code, § 2625, subd. (d).)

" ‘There is nothing vague or ambiguous about the legislative command—in the absence of a waiver, the juvenile court must appoint an attorney to represent an indigent parent at the detention hearing and at all subsequent proceedings.’ " ( In re J.P . (2017) 15 Cal.App.5th 789, 796, 223 Cal.Rptr.3d 426.)

DCFS contends, citing In re Joseph G . (2000) 83 Cal.App.4th 712, 99 Cal.Rptr.2d 915, that father repeatedly waived his right to attend the hearings with the result he has no standing to appeal based on his disinterest in attending and participating in the proceedings. In re Joseph G . involved a biological father who was not in custody. ( Id . at p. 714, 99 Cal.Rptr.2d 915.) In contrast, father here, was incarcerated and did not waive his appearance at the last arraignment hearing scheduled for him on February 6, 2018. Father had the right to anticipate representation at the jurisdiction hearing after he requested counsel be appointed and opted not to appear himself. ( Pen. Code, § 2625, subd. (d) ; Welf. & Inst. Code, § 317, subd. (b).)

DCFS next contends that the juvenile court was not required to appoint an attorney to represent father in Andrew’s case because on two occasions he waived his right to counsel. To support this contention, DCFS argues this case is similar to In re Ebony W ., supra , 47 Cal.App.4th 1643, 55 Cal.Rptr.2d 337. There, the mother was not in custody and never indicated a desire for representation. ( Id . at p. 1648, 55 Cal.Rptr.2d 337.) The appellate court held under those circumstances that the juvenile court was not required to appoint counsel for the mother. ( Ibid. )

The facts of this case are nothing like those of Ebony W . Father was incarcerated and clearly unable to afford an attorney. He requested representation six out of nine times . In particular, he requested appointment of counsel repeatedly for each of Andrew’s scheduled detention hearings and for the November 20, 2018 hearing at which the juvenile court adjudicated Andrew’s petition. These repeated requests triggered the juvenile court’s obligation to appoint counsel for father in Andrew’s case.

Father’s attorney in E.M.’s case reminded the court at the outset of the November 20, 2018 jurisdiction hearing that "[f]irst, just so that it’s clear on the...