Metropolitan News-Enterprise


Friday, November 15, 2002


Page 1


High Court Takes Broad View of Indigent Parent’s Right to Counsel in Juvenile Court Proceedings


By a MetNews Staff Writer


The right of an indigent parent to appointment of appellate counsel following termination of parental rights is not limited to dependency cases, the state Supreme Court ruled yesterday.

Reversing an unpublished order of the Fifth District Court of Appeal, the justices ordered that court to appoint counsel for a woman who is appealing a Fresno Superior Court commissioner’s order severing the relationship between her and her son.

The appeal is from Commissioner David Kalemkarian’s order under Family Code Sec. 7822. The statute establishes a procedure by which a social services agency or “[a]ny interested person” may seek to terminate the rights of a parent who has abandoned the child.

Kalemkarian entered the order in June of last year, terminating the rights of Jacqueline W., as she was identified by the Supreme Court. The order was based on a petition by Walter W., who contended that Jacqueline W. had abandoned the couple’s son in February 1995 and had not supported or communicated with the child since.

The commissioner appointed counsel for the mother and held a two-day hearing before granting the petition. The mother appealed and requested that the court appoint counsel on appeal pursuant to Sec. 7895, which provides that an indigent parent is entitled to counsel on appeal “from a judgment freeing a child who is a dependent child of the juvenile court from parental custody and control.”

The Fifth District panel originally granted the order, but quickly vacated it, concluding that the mother was entitled to appointed counsel on appeal because her son was not the subject of a dependency proceeding. The mother was allowed to apply for a discretionary appointment of counsel, but the Court of Appeal concluded that she lacked good cause to have counsel appointed.

The mother’s petition for review was granted by the high court, which appointed Bradley Bristow of the Central California Appellate Program to represent the father and Fresno attorney Robert Navarro to represent the mother.

Justice Joyce L. Kennard, writing for the Supreme Court, concluded yesterday that the right to appointed counsel applies to “any indigent parent” appealing a termination of parental rights, regardless of the nature of the proceeding.

The justice cited In re Jacqueline H. (1978) 21 Cal.3d 170, in which the high court unanimously held that a mother, whose parental rights had been terminated upon petition of a county adoption agency under the predecessor of Sec. 7822, was entitled to appointment of counsel on appeal.

The court based its ruling on two since-repealed Civil Code sections, one that expressly provided for appointment of trial counsel for indigent parents facing possible termination of parental rights and one that described the effect of a judgment in such a proceeding. The two sections, the justices ruled, implied that the Legislature intended such parents to have appointed counsel on appeal.

Subsequently, the Legislature adopted the gist of what is now Family Code Sec. 7895. It was not the intent of that legislation, Kennard concluded, to limit the right to appointed counsel on appeal to dependency proceedings.

Such an interpretation, the jurist reasoned, would make no sense “because parental rights for juvenile court dependents are terminated in juvenile court dependency proceedings under the Welfare and Institutions Code and not in family court proceedings under the Family Code to free a child from parental custody and control.”

The legislative history of Sec. 7895, Kennard added, indicates that the Legislature was aware of Jacqueline H. and did not intend to limit its holding to dependency proceedings.

The case is In re J.W., 02 S.O.S. 5749.


Copyright 2002, Metropolitan News Company