Metropolitan News-Enterprise


Wednesday, August 10, 2011


Page 1


No Right to Counsel in Guardianship Cases, Court Rules


By a MetNews Staff Writer


A mother’s interest in challenging the guardianship of her teenage daughter is not sufficient to entitle her to appointed counsel, the First District Court of Appeal ruled yesterday.

Div. Three, in a decision by Justice Peter J. Siggins, said that private guardianship proceedings do not “present the David and Goliath scenario created when the power of the state is brought to bear upon an unrepresented parent,” and that the mother, identified as L.B., had no constitutional right to an attorney.

Siggins noted the lack of any California authority that “directly addresses whether and under what circumstances a parent may have a due process right to counsel in a guardianship proceeding brought under the Probate Code,” but reasoned the principles set forth in Lassiter v. Department of Social Services (1981), 452 U.S. 18, which guide the due process considerations in dependency cases, were applicable.

Joined by Justices Stuart R. Pollak and Martin J. Jenkins, Siggins explained that courts hearing dependency cases that may result in findings which could later serve as the basis for terminating parental rights “have generally found a due process right to appointed counsel,” but said L.B.’s situation was distinguishable since guardianship hearings “do not occupy the same plane as…proceedings that trigger termination of parental rights” in dependency cases.

Siggins acknowledged that L.B. faced “the loss of her daughter’s care, companionship and custody for an indefinite period of time that could conceivably last until [the 16-year-old]’s majority,” but said the guardianship proceedings did not “pose an equivalent threat to L.B.’s parental rights as adverse dependency rulings that may lead directly to termination” since “unlike the dependency scheme, none of the findings that can lead to termination are made in the initial guardianship proceeding.”

He went on to reject L.B.’s contention that recent revisions to the probate guardianship statutes—allowing a guardian to petition to have a child declared free from a parent’s custody and control and adopt that child—moved the instant case into the category of proceedings that lead to the termination of parental rights.

The justice further noted that “as difficult as it may be for an unrepresented parent to navigate the rules of evidence and courtroom procedure, this case did not involve expert medical or psychiatric testimony or other particularly complex areas,” which “weigh[ed] against the risk of error and the likelihood that the result would have been different had L.B. been represented by counsel.”

In the unpublished portion of yesterday’s decision, however, the justices ordered a limited reversal for compliance with the notice requirements of the Indian Child Welfare Act.

The case is Guardianship of H.C., A126914.


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