Rayna R. v. Superior Court
| Decision Date | 10 December 1993 |
| Docket Number | A061831,Nos. A061830,s. A061830 |
| Citation | 25 Cal.Rptr.2d 259,20 Cal.App.4th 1398 |
| Court | California Court of Appeals Court of Appeals |
| Parties | RAYNA R., Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent; SAN MATEO COUNTY DEPARTMENT OF HUMAN SERVICES et al., Real Parties in Interest. JOSEPH R., Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent; SAN MATEO COUNTY DEPARTMENT OF HUMAN SERVICES et al., Real Parties in Interest. |
Robert E. Daye, Menlo Park, Craig R. Morey, San Mateo, for petitioners.
No appearance for respondent.
Thomas F. Casey, County Counsel, Beth Labson Freeman, Deputy County Counsel, Redwood City, Robert L. Walker, San Francisco, for real parties in interest.
In 1988 the Legislature established that a petition for an extraordinary writ, not an appeal, is the proper vehicle for immediately challenging a decision to institute proceedings to terminate parental rights made at a juvenile court permanency planning hearing. (Welf. & Inst.Code, § 366.25, subd. (j), added by Stats.1988, ch. 1075, § 6, p. 3475; see In re Matthew C. (1993) 6 Cal.4th 386, 398-99, 24 Cal.Rptr.2d 765, 862 P.2d 765.) 1 Effective January 1, 1993, the Judicial Council approved a form designed to facilitate filing these statutory writ petitions and similar petitions authorized by section 366.26, subdivision (k). The two petitions before us use the form and present important procedural issues not resolved by the Legislature or by prior appellate decisions.
In this opinion, we address confusion existing in superior courts and among trial counsel over appointment of counsel for indigent petitioners and over preparation of the record in these writ proceedings. We consider whether counsel appointed for proceedings in superior court should also be responsible for writ petitions and whether the county is obligated to pay for transcripts required for review by this court. We conclude attorneys appointed by the superior court should also, under that appointment, present any petitions to this court. We determine that the county is obligated to pay for reporter's transcripts required by the indigent petitioners.
We also remind litigants and counsel: (1) the form must be accompanied by an adequate record, as defined by Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186, 154 Cal.Rptr. 917, 593 P.2d 862, and rule 56(c), California Rules of Court; and (2) filling out the brief form may not meet a litigant's burden of showing trial court error.
Finally, in the unpublished portion of this opinion, we consider the merits of each petition and conclude the superior court rulings were correct.
I. Steps Taken by the Parties and by this Court
On May 24, 1993, petitioners Rayna R. and Joseph R., through counsel, filed two separate petitions in this court on forms designated, "Judicial Council of California JV-825 (New January 1, 1993)." Rayna and Joseph challenged an order setting a hearing under section 366.26 to consider termination of their parental rights to their daughter, Regina H. They asserted that reunification services were inadequate, that insufficient evidence was presented, the finding of detriment to Regina was insufficient, and no showing was made of a substantial risk to Regina. Although Rayna and Joseph each provided a very brief summary of facts and attached some supporting documents, neither provided a reporter's transcript or points and authorities.
Rayna and Joseph stated, They each made a request for appointment of counsel by this court, specifically requesting appointment of the same attorney currently representing each of them in superior court. Both Rayna and Joseph sought a stay of the section 366.26 hearing set for June 9, 1993.
Three days later an attorney representing de facto parents Roger and Michelle H. filed preliminary opposition to the two petitions. Roger and Michelle H. objected to the petitions both on the merits and because Rayna and Joseph had not complied with requirements stated in rule 56(c), California Rules of Court, regarding records required to support writ petitions.
The following day, county counsel also filed opposition on behalf of the San Mateo County Department of Human Services, Youth and Family Services Division (the Department). The Department objected to the record provided by Rayna and Joseph and to verifications by counsel without a showing the parties themselves were not available to verify. The Department also supported the decision on the merits.
Shortly thereafter, responding to questions from our clerk, counsel for Rayna and Joseph filed declarations stating that they had been appointed to represent Rayna and Joseph in superior court proceedings on May 23, 1991, and had represented them ever since. Counsel implied that their appointments were limited to proceedings in superior court. One attorney explained that the San Mateo County Private Defender Program, under which they were appointed, had no procedure for handling this type of appellate relief. Counsel therefore approached the First District Appellate Project in San Francisco (which has contracted to provide counsel for indigent criminal appeals to this court), but that office declined to assist. The Private Defender Program then designated trial counsel as the attorneys for Rayna and Joseph on the petitions for extraordinary writ.
Counsel also presented a declaration by the superior court commissioner who made the challenged ruling. The declaration stated that, at Rayna's and Joseph's requests, the commissioner initially instructed her court reporter to prepare a transcript but, because no declaration of indigency had been presented with the request, and it was not clear whether the Private Defender Program would assume the financial burden of paying for the transcript, she advised the court reporter to suspend preparation of the transcript. She then advised counsel they would have to follow "a different procedure for obtaining the transcript...."
On June 4, 1993, after reviewing these documents and declarations, we issued an order staying the section 366.26 hearing, denying the request to appoint trial counsel for these proceedings, and ordering the superior court to direct preparation of the reporter's transcript at county expense. We set a schedule for completing the transcript and for filing points and authorities in this court. Having received the transcript and points and authorities from all parties, we address the various procedural and substantive issues.
II. How Should the Parties and Courts Proceed?
The natural starting point for our procedural inquiry is appointment of counsel. The typical litigant, facing impending proceedings to terminate parental rights, will need counsel to negotiate the procedural complexities and to analyze the emerging and evolving decisional authority on permanency planning. (Cf. In re Emilye A. (1992) 9 Cal.App.4th 1695, 1709-1711, 12 Cal.Rptr.2d 294.) If a petitioner is indigent, appointment of counsel will be required. (§ 317.) We consider whether the superior court appointment encompasses writ petitions filed under sections 366.25, subdivision (j), and 366.26, subdivision (k), or whether an appointment by this court is required. We conclude the original appointment implicitly applies to pretrial writ petitions.
Three factors influence our decision: (1) the familiarity of superior court counsel with the case, (2) the Legislature's implied intention that writ proceedings not cause delay in proceedings to terminate parental rights, and (3) the inherent conflict of simultaneous representation by two attorneys, one of whom may be required to challenge the actions of the other.
Under the statutory scheme, permanency planning begins when a child is declared a ward of the court and removed from the parents' custody. The court must make orders regarding reunification services and advise parents that their rights may be terminated if they do not reunify within 12 months. Every 6 months, the juvenile court must review the case. By statute, it is presumed the child will be returned to parental custody. If the child is not returned to the parents at the 18-month review, the court must set the matter for a hearing to select and implement a permanent plan, which may be termination of parental rights and adoption. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248-249, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)
If parental rights are terminated, a litigant may appeal the decision. (§ 395.) However, before terminating parental rights, the court will have determined that the minor cannot be returned home and that reunification efforts should not be pursued, or, if pursued, should end. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 250, 19 Cal.Rptr.2d 698, 851 P.2d 1307.) These intermediate decisions may be challenged by extraordinary writ, authorized by sections 366.25, subdivision (j), and 366.26, subdivision (k).
Trial counsel is in the best position to understand the importance of the court's rulings, the probability the court has erred, and the likelihood of success in the appellate courts. Trial counsel should be able to determine, before preparation of a record, where the trial court erred and should be able to begin immediately to prepare a timely, focused attack on the ruling. New counsel would have to wait for preparation of the record, digest it fully, and consult trial counsel before beginning to prepare a writ petition. In view of the requirement the selection and implementation hearing pursuant to section 366.26 be held within 120 days, the Legislature could not have intended that new counsel file writ petitions. (§§ 361.5, subd. (f), 366.21, subds. (e), (g), 366.22, subd. (a).) 2
Intractable problems would arise if new counsel were...
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