IN RE: REGINA V.

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Court of Appeal, Second District, Division 4, California.

IN RE: REGINA V., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Petitioner and Respondent, v. CLAUDIO V., Appellant.

No. B071773.

Decided: February 15, 1994

Harry Zimmerman, Los Angeles, under appointment by the Court of Appeal, for appellant. De Witt W. Clinton, Los Angeles, Erica Broido, and Jeanette Malouf, Monterey Park, for petitioner and respondent.

This case involves the inherent tensions which arise from competing interests between the parents and the State in determining what is in the best interest of a dependent child.   It also exemplifies the potential disruptive effect on the life of a child which may occur when the state fails to process dependency matters properly.

The child in this matter is Regina V., born March 21, 1989.   Since June 1989, her father (appellant) has been incarcerated in a federal prison in Texas.   On June 30, 1993, a petition for adoption was granted wherein Regina V. was adopted by her foster parents.   However, at the time of the adoption, this appeal by the father was pending, and it challenged findings made during Regina V.'s dependency proceeding that resulted in termination of his parental rights.  (Welf. & Inst.Code, § 366.26.) 1  He contends that he was denied effective assistance of counsel and that we should declare the adoption void.   We agree that appellant was deprived of his right to effective assistance of counsel.   We also find that the matter was improperly processed through the system.   We reverse.

THE CALIFORNIA DEPENDENCY SCHEME

Before discussing the facts of this case, it is important to note how the California dependency statutes interrelate to protect the interests of each of the various parties.   Our Supreme Court recently undertook such a review in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 19 Cal.Rptr.2d 698, 851 P.2d 1307 to determine whether the California statutory scheme met the United States constitutional requirements enunciated in Santosky v. Kramer (1982) 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.   The issue raised in Cynthia D. v. Superior Court was the standard of proof necessary to support the findings made at a section 366.26 “selection and implementation hearing” relating to the termination of parental rights.

In Santosky, the United States Supreme Court measured New York's procedures for termination of parental rights against federal constitutional protections.   In Cynthia D., the California Supreme Court reviewed the factors discussed in Santosky that addressed the various interests involved and the need for proper protection for all parties.   First considered were the private interests affected.   It noted that parental rights are fundamental and that a child and his foster parents are also deeply interested in the outcome.   The court concluded Santosky had determined that “the balance of private interests strongly favored heightened procedural protections.  [Citation.]”   (Cynthia D. v. Superior Court, supra, 5 Cal. 4th at p. 251, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)   The second consideration was the risk of error inherent in the procedure.  Santosky found that the New York statutes magnified the risk of an erroneous determination because, in addition to other factors, the New York court's “unusual discretion to underweigh probative evidence favoring the parent;  the state's greater ability to assemble its case;  [and] the fact that the state had the power to shape the historical events that formed the basis for termination․”  (Id. at p. 252, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)   The third consideration was the governmental interest supporting the procedure—“the parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings.  [Citation.]”  (Id. at p. 252, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)

The California Supreme Court then analyzed our statutory scheme, and discussing two of the factors identified in Santosky, made the following findings:  “Turning to the current statutory scheme, section 366.26 cannot properly be understood except in the context of the entire dependency process of which it is part.   Unlike the termination hearing evaluated in Santosky v. Kramer, ․ the purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement.   By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness.   Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard (see § 361, subd. (b));  in addition, there have [sic] been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent.  (§§ 366.21, subds. (e), (f), 366.22, subd. (a).)  Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached.  [¶]  We therefore conclude that the three factors relied upon in Santosky v. Kramer, supra, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 to require an elevated standard of proof [clear and convincing evidence] do not compel the use of that standard in this case under our statutory scheme.”  (Id. at p. 253, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)

In discussing the second factor, the court noted the following:  “One of the reasons the court in Santosky v. Kramer felt it necessary to elevate the government's burden of proof was the disparity between the litigation resources available to the parties․   The California dependency statutes, by contrast, provide the parents a much more level playing field.   Not only must the court appoint counsel for a parent unable to afford one whenever a petitioning agency recommends out-of-home care (§ 317, subd. (b)), but such counsel must continue to represent the parent ‘at all subsequent proceedings' ‘․ unless relieved by the court upon the substitution of other counsel or for cause.’  (§ 317, subd. (d).)  Counsel for the parents are required to be given ‘access to all records relevant to the case which are maintained by state or local public agencies' and ‘by hospitals or by other medical or nonmedical practitioners or by child care custodians․'  (§ 317, subd. (f).)  The petitioning agency has diminished power ‘to shape the historical events that form the basis for termination’ because it must not only produce clear and convincing evidence that initial removal is necessary but additionally persuade the court that the agency made ‘reasonable efforts ․ to prevent or to eliminate the need for removal․’  (§ 361, subd. (c).)  Finally, if the child is removed, there is a statutory presumption that he or she will be returned, with the burden on the state to persuade the court otherwise on multiple occasions.  (See, e.g., § 366.21, subd. (e).)”  (Id. at p. 255, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)

With the foregoing in mind, we now turn to the facts of this case.

THE FACTS AND PROCEEDINGS IN THE TRIAL COURT

Regina V. was born on March 21, 1989, addicted to cocaine.   She was taken into custody by the Department of Children's Services (DCS) on March 23 suffering from neonatal narcotic withdrawal.   A dependency petition was filed on March 27, alleging that Regina V. came within the terms of section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect) as a result of the mother's frequent use of cocaine.

A March 28, 1989 detention report indicated that appellant had been interviewed.   Appellant advised the case worker he wanted to care for Regina and that he had not used drugs for six years.   A further report was prepared on April 24 which informed the court that appellant had been born in New Mexico in 1956 but had spent most of his childhood in Mexico, returning to the United States as an adult.   His primary language was Spanish, he had a fifth grade education, and was employed as a factory worker during the week and gardener on weekends.   The report identified appellant's sister-in-law and indicated she had been interviewed.   DCS concluded that placement with appellant would be “too risky” based on information that appellant had told his sister-in-law that if she took Regina, he and the mother would take the child back after a social worker approved the sister-in-law's home.   DCS also had learned that two other minor children of the mother and appellant were in placement with the maternal grandmother.

On April 26, 1989, DCS filed an amended petition which added count 2 alleging that appellant had a “previous drug history.”   The amended petition also identified Regina V.'s paternal aunt, giving a phone number and address for her.   On this same date, the court appointed separate counsel for appellant and for the mother pursuant to section 317.   The parents were not personally present and there is no indication either of them was given notice of the hearing or of the actions taken at the hearing.   The court entered the parents' denial of the allegations of the amended petition and ordered continued detention of Regina outside the home.

In June 1989, appellant was incarcerated in Texas.   The court, however, did not learn of this fact until September 1991.   There is no indication in the record whether appellant's appointed counsel had spoken with appellant by this time or had even tried to contact him.   Respondent argues that he had a duty to keep in touch with DCS and his counsel.   There is no evidence in the record to indicate what opportunity appellant had while incarcerated to effectuate communication during this period of time.

A jurisdictional hearing pursuant to section 366 was held on July 19, 1989.   Appellant and the mother were represented by counsel but neither parent was present.   The minute order reflects no finding whether any notice was given or attempted to be given to either parent relating to this proceeding.   The court sustained the petition as to both counts and ordered that the minor remain detained.   Counsel were ordered to give notice of the outcome to their clients.

On August 23, 1989, a dispositional hearing pursuant to section 358 was held.   The minute order reflects that the “Court finds notice of proceedings has been given as required by law.”   There is nothing in the record to support this finding to the extent that it reflects actual notice to either parent.   Both counsel for parents were present but neither parent was present.   The court made the following findings by clear and convincing evidence:  “Substantial danger to physical health of minor or minor suffering severe emotional damage, and no reasonable means to protect without removal from parent's or guardian's physical custody․   Reasonable efforts were made to prevent or eliminate need for minor's removal from home or it was reasonable under the circumstances not to make such efforts.”   The minor was declared a dependent child of the court and ordered taken from the parents and placed with DCS for suitable placement.   The court ordered family reunification services and participation by the parents in drug counseling and testing pursuant to section 361.5.   DCS was ordered to give notice of the proceedings and of the next hearing date of February 21, 1990 to “all appropriate parties.”

On February 21, 1990, the court found that notice had not been given and continued the review hearing until March 14, 1990.   A children's services worker's report was prepared and presented to the court for the March 14 hearing.   The report noted that Regina V. had been in the home of foster parents since one month after her birth and that the minor “has bonded well with the foster mother and is prospering under the foster mother's care.”   It further noted that the foster parents were interested in adopting the child.   With regard to the parents, the report noted:  “Lydia Lopez and Claudio [V.], the parents, have been whereabouts unknown since May 1989.   The mother telephoned the foster home in March 1989 but has never subsequently telephoned and has never visited the minor.   The parents have also not contacted nor cooperated with DCS.”   The report recommended that Regina “remain in her current placement and that a permanency planning hearing be scheduled at the earliest possible date as (1) the parents have not contacted DCS nor visited the minor, and (2) the parents have refused cooperation with DCS and the case plan.”   An additional report noted that “[t]he maternal grandmother reported that she had heard that the mother and the father were living in a camper truck in Inglewood or Lennox․   The maternal grandmother also stated that she thought that the parents could be incarcerated.   However, the due diligence search of 1–5–90 indicated that no record with jail clearance [sic].”

On March 14, 1990, the court consolidated Regina's case with that of her siblings.   The minutes reflect that the court ordered both counsel for the parents “relieved upon expiration of time for filing notice of appeal.”   There is no indication regarding the basis for the order.   The matter was continued for a permanency planning hearing (§ 366.25).   There is nothing in the record to indicate that appellant's appointed counsel had ever communicated with appellant or that appellant was aware of what had occurred up to this point.

On July 12, 1990, the court held a “permanency planning hearing.”   Neither parent was present and neither was represented by counsel.   The record reflects the minute order finding that “notice of proceedings has been given as required by law.”   A DCS report was received indicating that the parents' whereabouts were still unknown.   The report indicated that the “previous services plan will be discontinued” because the foster mother was pursuing adoption of Regina.   DCS recommended permanent placement services.   The court adopted all DCS recommendations and set another hearing for January 10, 1991.

On January 10, 1991, neither parent was present and neither was represented by counsel.   The court received and reviewed two DCS reports.   A December 27, 1990 DCS due diligence report indicated the maternal grandmother believed that appellant might be incarcerated in a federal prison.   A January 10, 1991 DCS report indicated that the parents' whereabouts were still unknown.   It reported that the foster parents were in the process of adopting two other minors currently placed with them and had abandoned the idea of adopting Regina at that time.   They were considering legal guardianship of her.   The court found by a preponderance of the evidence that continued jurisdiction of Regina was necessary and that her return to the physical custody of the parents would create a substantial risk of detriment to her physical or emotional well-being (§§ 364, subd. (c) and 366.2, subd. (e)).   It found by “clear and convincing evidence” that Regina could not be returned to the physical custody of the parents and that there existed no substantial probability of her return within six months.   Learning that the foster parents would not initiate adoption, it ordered Regina into long-term foster care, and again ordered DCS to provide permanent placement services.  (§ 366.21, subds. (f) and (g)(2).)   It set the next hearing for July 11, 1991.

On July 11, 1991, neither parent was present or represented.   A DCS report indicated that the parents' whereabouts were still unknown.   The court found that reasonable efforts had been made to reunite Regina and her parents and that the efforts had been unsuccessful.   It ordered an adoption assessment and continued the matter to September 5.

On September 5, 1991, neither parent was present and neither was represented by counsel.   However, the court officer noted that the grandmother had recently given significant information regarding the whereabouts of the parents.   The court officer requested that the matter be put over to October 8 for a supplemental report and to give notice to the father who was incarcerated in Texas.   The court officer was unsure whether the father was in state or federal custody.   The court ordered that the matter be put over to October 8, 1991, for appropriate notices and an “appearance progress report for that date and potential [§ 366].26 setting.”

At the October 8, 1991 hearing, the court appointed new counsel to represent appellant and the mother.   The court directed counsel for appellant to correspond with him regarding the recommendation for adoption.   The matter was continued to January 9, 1992.

At the January 9, 1992 hearing, counsel appeared for both parents.   The court and counsel agreed that they were participating in a permanency planning hearing to consider the change in recommendation from long-term foster care to adoption.   DCS witness Ree Vanoppen, a supervising case worker, testified she had not learned appellant's address until September 5, 1991, and she then sent him copies of all DCS reports and notice of the October 8, 1991 hearing.   She had not received any indication of waiver.   At the direction of the court, she had contacted the paternal grandmother, who had not contacted Regina.   The court found by clear and convincing evidence that Regina was adoptable, noting that she was thriving and had bonded with the foster family, and that her mother had not had any contact with her since the first month of her life.   It further found that it was in Regina's best interest to refer the matter to the California Department of Adoptions for permanent placement.   It continued the matter to May 7.

The May 7 hearing was attended by a paternal aunt and appellant's friends Manuel and Maria Iturbe, residents of New Mexico.   Counsel for the mother indicated that her whereabouts again were unknown.   Counsel for appellant requested that DCS interview the Iturbes, who had expressed interest in caring for Regina.   The court ordered DCS to interview “paternal relatives.”   The court continued the matter to August 5 for a contested section 366.26 hearing.

Appellant's sister, her husband, Mr. Iturbe, and the foster parents attended the August 5, 1992 hearing.   Appellant's counsel informed the court that appellant was in federal custody in Texas, did not waive his appearance, and wished to appear.   The court instructed counsel that he must petition for “writ of habeas corpus ad testificandum ” in the Texas court of jurisdiction.   Counsel told the court that appellant opposed adoption and had developed a plan which included guardianship by Mr. Iturbe, to whom he had granted a general power of attorney, so that appellant could have custody of Regina upon his release from prison.   The court stated:  “All right.   Well, the minor is three and a half now.   And it seems to me that it's been an awfully long time for the father to have sat back without recommendation of Mr. and Mrs. Iturbe as possible caretakers for the child;  that's three and a half years.”   Counsel stated he had been appointed in January 1992 and that he did not believe that appellant had been represented before that time.   The court continued the matter to September 17 to afford appellant an opportunity to submit a written plan for Regina and to give DCS an opportunity to evaluate the Iturbes as guardians and render a “good faith evaluation of this issue and the reasons for the recommendation.”

The September 17, 1992 hearing was attended by appellant's sister, her husband, Mr. Iturbe, the foster parents, and Regina.   The court received appellant's notarized declaration and grant of general power of attorney.   The declaration stated in part:  “Having contact with my daughter has been extremely difficult since my incarceration due to the fact that the communication channels are not at an optimum under the present situation and the age of my daughter practically eliminates phone calls.  [¶]  I was with my daughter from her birth on 3–21–89 until June of 1989 when I was incarcerated.   From the inception of my being incarcerated I have tried without any success to have someone of my choosing, namely the Iturbe's, as well as my own sister and her husband, to assume the care and security of my daughter.  [¶]  I have given proper POWER OF ATTORNEY and Guardianship of my daughter to Mr./Mrs. Iturbe in order for these kind people to raise my daughter until I am released from prison.   I have written to Ruthie B. Avery, Department of Children's Services, without success or responses, so I can only hope that the court will not also turn a deaf ear to my desperate pleas for help in keeping my daughter.”

DCS witness Joyce Scheckwitz, a children's service and adoptions worker, opined that the best permanent plan for Regina was adoption by the foster parents, who had raised six children of their own, had cared for 19 foster children, and were presently adopting four children.   According to counsel for DCS, Ruth Avery was the social worker who would have been in a position to have received correspondence from appellant, but Avery was “unable to be present.”

On cross-examination by appellant's attorney, Scheckwitz testified to the following facts.   She had been present when the court had ordered evaluation of the Iturbes.   About a month before the present hearing, a Mr. McDougal from the New Mexico social services office had notified her that he had been in contact with Mr. Iturbe regarding a home evaluation.   Scheckwitz had told him that she had not seen a copy of the minute order and therefore could not authorize the evaluation.2  She had sent an interstate compact notice on September 15, 1991.

On re-direct examination, Scheckwitz indicated that DCS was more likely to investigate nonrelatives for adoptive purposes when interest had been expressed early in the process rather than three years later as in the present case.   She opined that moving Regina to another community and family would be painful because of the bonding of the minor to the foster parents.   Bonding normally was complete by age five.   On cross-examination, appellant's counsel elicited that DCS has removed children from homes in which they had bonded to foster parents in preparation for adoption by others.

DCS witness Yvonne Bacy–Bujer testified she was Avery's supervisor and was aware that appellant had contacted Avery one time.   In forming her opinion that the parental rights should be terminated and that DCS should proceed with the adoption, Bacy–Bujer relied substantially on the fact that appellant had contacted DCS only once and that he was incarcerated.   She testified regarding the contact, apparently based on DCS records or conversation with Avery, as follows:  “On 3–11–1992, [appellant] contacted Ruth Avery.   It was believed at the time of the telephone call that he is Spanish speaking.   So the conversation occurred between Spanish speaking worker who is currently under my supervision, Miriam Montiel, is her name and [appellant].   At that time he indicated that he is incarcerated but has someone that he's interested in to take care of and adopt his daughter.  [¶]  He also indicated he was incarcerated for drugs.”   According to Bacy–Bujer, Avery also had recommended that the parents' rights be terminated, based on the facts that appellant was incarcerated and unable to care for Regina and the whereabouts of the mother was unknown.   Bacy–Bujer further testified that Avery was not testifying because it was not part of her duties to participate in section 326.36 hearings unless required by the court.   It was Avery's responsibility to contact appellant but not to contact the Iturbes.   It was the Iturbes' responsibility to contact the DCS adoptions division.   On cross-examination by appellant's counsel, Bacy–Bujer testified that the Iturbes had contacted DCS.

The court noted that it had specifically ordered Avery to be present in court for the hearing and was “not happy” that she was not present because the testimony would have been more meaningful if given by the person actually involved.   The court accepted the testimony of Bacy–Bujer on the ground that she was an expert.

The parties stipulated that Mr. Iturbe would testify that he was related by marriage to paternal relatives, that appellant had contacted him to act as guardian in March 1992, and Mr. Iturbe then contacted DCS numerous times before he was able to reach Avery.   He had met with Mr. McDougal in the New Mexico human services office and had been fingerprinted.   McDougal had contacted DCS.  Mr. Iturbe had come to court from New Mexico three times at his own expense.   He was 68 years old, lived with his wife and two teenage children in a four bedroom home, and would care for Regina at his own expense.   Appellant had indicated to his counsel that he expected to be released in three years.   Counsel noted that appellant's criminal case was on appeal.

The court found by clear and convincing evidence that Regina would be adopted (§ 366.26, subd. (c)(1)).   The court made the following comments with respect to terminating parental rights:  “What is difficult for me in this case is I have to balance the needs of the minor with the fact that a concerned close friend of the father has presented himself to the court for possible guardianship of the minor.  [¶]  What strikes me is it's too little too late.   It would have been wonderful if the father had contacted his friend, Mr. Iturbe, at the beginning of the placement of the minor so that the minor could have been placed as a result of [the interstate compact] in New Mexico with what appears to be a loving family from New Mexico.   But when does this contact occur?   The contact occurs in March of 1992.  [Regina] was born March 21, 1989.   That is a substantial period of time between any contact by the father's friend, close friend, to become guardian.”

The court then reviewed Regina's history with her foster parents, the foster parents' strengths, and the problems related to separating her from them at that stage of her development.   The court continued:  “It would have been so much easier to place her in the Iturbe's home when she was six, seven months old․   But three years later, two and a half years later, I believe it is just too devastating for a young child.   She has had so little contact with her father in the last two and a half years and no face to face visits that I don't see any reason to proceed to a less extreme mode of permanent plan than adoption.  [¶]  If you had presented evidence that the father made arrangements to have her brought to his place of incarceration;  if there had been contact, if there had been a lot of monitoring by the father's family;  that's a different situation.   But Mr. and Mrs. Iturbe appear out of nowhere and offer their services.   Those services are known, but I believe it's just too late.”

The court also noted that it appeared that appellant would remain incarcerated for a substantial period of time.   The court terminated the parental rights, observing that the best interest of Regina lay in her remaining with the foster parents and being adopted by them, and that appellant had acted “way too late.”  “Had he made his wishes known early on, the court would have had no problem removing [Regina] from a home that she had resided in for a few months and having them investigate the appropriateness of Mr. and Mrs. Iturbe.   It is just way too late and that[ ] saddens me.”

Appellant filed a timely appeal on November 12, 1992.

DISCUSSION

 A. Mootness of the appeal—is the adoption void?

Respondent argues that the appeal is moot because the minor has been adopted and section 366.3, subdivision (a) requires the juvenile court to terminate jurisdiction over a minor after an adoption decree has been made.   Appellant argues that we should declare the adoption void.

Section 366.26, subdivision (i) provides in part:  “If the court, by order or judgment declares the minor free from the custody and control of both parents, or one parent if the other does not have custody and control, the court shall at the same time order the minor referred to the State Department of Social Services or a licensed adoption agency for adoptive placement by the agency.   However, no petition for adoption may be granted until the appellate rights of the natural parents have been exhausted.”  (Emphasis added.)

 First, as to mootness, section 366.26, subdivision (i) is clear on its face.   This appeal was timely filed (see next section), thus vesting this court with jurisdiction.   The petition for adoption should not have been granted.   We find it rather disingenuous that respondent even attempts to convince us that because the trial court proceeded with the adoption in the face of section 366.26, subdivision (i) that the appeal is now moot.

 Next, appellant asks us to declare the adoption void.   Appellant did file a petition for writ of mandate, in this action as compared to the adoption action, asking us to issue an alternative writ to the adoption court regarding the order approving the adoption.   We denied the writ.   Appellant must first approach the trial court in the adoption matter and seek relief.   We do not have the parties to the adoption before us and therefore we have no jurisdiction at this time to make as the ruling that appellant is seeking.

 B. Validity of the appeal:

 Next, respondent argues that appellant's challenge to the ruling relieving his counsel, which was effectuated by order of March 14, 1990, is untimely because it was not brought within 60 days from that date.   Respondent does not advise us who would have filed the notice of appeal on behalf of appellant.   His counsel had been relieved and there is no indication that appellant had notice or knowledge of the actions taken by the trial court.   In fact, by March 1990, there is evidence in the file that the child's grandmother advised DCS as early as March 1990 that appellant might be incarcerated.

In any event, respondent's argument totally misses the issue.   While the order relieving appellant was effectuated on March 14, 1990, the fact is that the trial court continued to take steps after that date which affected appellant's parental rights.   These actions, taken while appellant was without counsel, set the stage for the ultimate judgment terminating his rights.   While respondent cites California Rules of Court, rule 39(b) regarding appeals from juvenile court, rule 39.1 is a “Special Rule for Dependency and Freedom from Custody Appeals,” and at subdivision (f) provides:  “Notice of appeal shall be filed within 60 days after the making of an appealable order․”   As indicated above in section A., section 366.26 specifically contemplates that an order of judgment terminating parental rights is an appealable event.   Appellant bought this appeal within 60 days from the section 366.26 hearing.   Therefore, his appeal is timely.

 C. Denial of counsel:

 Appellant contends that the court orders relating to Regina's adoptability and termination of parental rights must be reversed because he was denied the assistance of counsel at critical stages of the dependency proceedings.   We agree.   The order relieving counsel violated the requirement of section 317, subdivisions (b) and (d) regarding attorney representation of indigent parents at all post-appointment proceedings.

Recently, in In re Tanya H. (1993) 17 Cal.App.4th 825, 21 Cal.Rptr.2d 503, Division 1 of this District was presented with a similar issue.   An indigent parent appealed an order relieving his counsel of record in a dependency proceeding.   The order relieving counsel was based upon a policy memorandum adopted for fiscal purposes by the Los Angeles Juvenile Dependency Court.   The policy contradicted the provisions of section 317 of the Welfare and Institutions Code by providing that attorneys appointed to represent indigent parents were to be relieved following the first review of a permanent placement plan “ ‘unless good cause to the contrary is individually shown by any attorney seeking to remain appointed on the case.’ ”  (Id. at p. 827, 21 Cal.Rptr.2d 503.)   The court reversed the trial court order relieving counsel and stated:  “Under subdivision (d) of section 317, ‘[t]he counsel appointed by the court shall represent the parent, guardian, or minor at the detention hearing and at all subsequent proceedings before the juvenile court.   Counsel shall continue to represent the parent or minor unless relieved by the court upon the substitution of other counsel or for cause.  ․  [¶]  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, and the attorney shall continue to represent the parent unless relieved by the court upon the substitution of other counsel or for cause.   Accordingly, there is no need to divine the Legislature's intent by reference to the statute's history or otherwise—we simply construe the statute to mean what it says.  [Citation.]”  (Id. at pp. 828–829, 21 Cal.Rptr.2d 503.)

In Cynthia D., supra, 5 Cal.4th 242, 19 Cal.Rptr.2d 698, 851 P.2d 1307, one of the reasons our Supreme Court felt that the California statutory scheme provided adequate protection was that “[n]ot only must the court appoint counsel for a parent unable to afford one whenever a petitioning agency recommends out-of-home care (§ 317, subd. (b)), but such counsel must continue to represent the parent ‘at all subsequent proceedings' ․ ‘unless relieved by the court upon substitution of other counsel or for cause.’  (§ 317, subd. (d).)”  (Id. at p. 255, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)

In the instant case, although the record indicates appellant was initially represented in the proceedings through the disposition hearing, counsel was thereafter relieved.   The record is silent regarding why counsel was relieved, and there is nothing in the record to support an inference that counsel was relieved for good cause.   The record is clear that no other attorney was appointed to replace counsel and that appellant was unrepresented for 18 months.   This is a violation of the dictates of section 317 and requires reversal.

 D. Failure to follow the appropriate statutory scheme:

 The problems relating to this case are not limited to denial of counsel.   One of the other reasons the Supreme Court felt that California's dependency scheme provided adequate protection was that, contrary to the New York scheme, “[t]he petitioning agency has diminished power ‘to shape the historical events that form the basis for termination’ because it must not only produce clear and convincing evidence that initial removal is necessary but additionally persuade the court that the agency made ‘reasonable efforts ․ to prevent or to eliminate the need for removal.’ ”  (Id. at p. 255, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)   Unfortunately, that was not true in this instance.   The entire system failed and allowed events to develop in a manner which denied appellant due process and ultimately resulted in termination of his parental rights.   In the words of appellant's counsel, the trial court failed to “dot the I's and cross the T's.”

At the termination hearing on September 17, 1992, the court clearly expressed its findings relating to appellant's plan on the record:  “it's too little too late․  [¶]  It would have been so much easier to place her in the Iturbe's home when she was six, seven months old․   But three years later, two and a half years later, I believe it is just too devastating for a young child.”   The court placed the blame directly upon appellant for not coming forward earlier.   This totally ignored the inept handling of this case by DCS and the court.

The only evidence in the file relating to appellant's incarceration is his declaration indicating that he became incarcerated in June 1989.   We must accept this as true.   Counsel was appointed to represent appellant at the hearing on April 26, 1989, and was relieved by order of March 14, 1990.   The court failed to appoint new counsel until September 5, 1991.   During this entire period of time, DCS recommended family reunification and drug counseling for the parents as part of the plan for Regina.   This is required by the California statutory scheme to reestablish family unity.  (§ 361.5.)   This is also one of the safeguards referred to by the Supreme Court in Cynthia D. v. Superior Court, supra, 5 Cal.4th at page 253, 19 Cal.Rptr.2d 698, 851 P.2d 1307.   However, DCS claimed that appellant's whereabouts were unknown from May 1989 to September 5, 1991, when they learned that he was incarcerated in Texas.   There was no possibility that the parent reunification plan established by DCS could have been implemented.   Notwithstanding this, DCS advised the court in July 1990, that the reunification efforts had failed and that the court should proceed to the next step, permanent placement of the minor, preferably through adoption.   The court agreed.

On July 11, 1991, DCS again advised the court that reunification attempts had failed and recommended long term foster care.   The minute order of that date reflects that the court made a finding, based upon preponderance of the evidence, that “reasonable efforts have been made to reunite minor and parents and such efforts were unsuccessful.”   Under the California statutory scheme, pursuant to section 366.21, subdivision (g)(1) such finding must be made before the court takes the next step to a section 366.26 termination hearing.   However, section 366.21, subdivision (g)(1) requires such finding to be made by clear and convincing evidence.   At this point, the court decided to direct the proceedings into termination proceedings pursuant to section 366.26.

Finally, in September 1991, the court was first advised that appellant had been located and was incarcerated in Texas.   On October 8, 1991, counsel was again appointed to represent the parents.   However, the court would not reverse the proceedings and insisted that matters proceed by way of a contested termination proceeding pursuant to section 366.26, and that is how matters ultimately did proceed.   At the September 17, 1992 hearing, the court would only hear evidence relating to who would be allowed to care for Regina V. in the future.

 The foundational finding made by the trial court on July 11, 1991, that reasonable but unsuccessful efforts were made to reunite the minor and the parents, cannot stand.   First, the findings were based upon a preponderance of the evidence, which is an improper standard.   However, and more important, because appellant's whereabouts were unknown during this entire time, there was no evidence from which the court could determine that DCS had made any reasonable efforts to reunify the minor and appellant.   The only finding the court could have made was that appellant's whereabouts were unknown.   The code does allow the court to assume jurisdiction over the child where the parents have abandoned the child and cannot be located.  (§ 300, subd. (g).)  Thereafter, the court can proceed to a section 366.26 hearing if the whereabouts of the parent remain unknown.  (§ 366.21, subd. (e).)  However, the petition was never amended to allege this as a basis upon which to proceed.   If that had been done, the court would then have been faced with determining what efforts had been made to locate appellant.   The record before us is totally inadequate to support a finding of reasonable efforts to locate appellant.   Despite the fact that appellant's sister was identified by name, address and telephone number in the amended petition and that appellant's sister-in-law was identified by name in the report of April 26, 1989, there is no indication in the file that either of these persons was ever contacted by DCS to attempt to locate appellant.   DCS was advised as early as March 1989 appellant might be incarcerated.   In December 1990, DCS was advised he might be incarcerated in Federal Prison.   There is no indication of an effort to locate appellant other than a cursory check of prison records.

DISPOSITION

 While we can appreciate the fact that the job of the DCS and the court was made more difficult by appellant becoming incarcerated, we cannot condone the laxity in which the system handled this matter.   We also realize the potential disruptive effect this decision may have on the child and the foster parents.   However, we cannot justify terminating appellant's parental rights and denying appellant the proper protection of the law because of the ultimate effect upon the parties.   It is precisely for that reason that the court and DCS must carefully preserve the rights afforded all parties under the law.   We reverse the order of the trial court terminating the parental rights of appellant, and the order of July 11, 1991, reflecting the finding that reasonable efforts had been made to reunite Regina with her parents.   The matter is remanded to the trial court with directions to commence proceedings from the stage of the dispositional hearing in effect on March 14, 1990, at which time the matter was continued for a permanency planning.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   In response to a question by the court, she agreed she could have waited after the hearing to get a copy of the minute order, which must accompany the interstate compact request.

HASTINGS, Associate Justice.

ARLEIGH M. WOODS, P.J., and EPSTEIN, J., concur.

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