IN RE: PATRICIA E.

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Court of Appeal, Third District, California.

IN RE: PATRICIA E., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY WELFARE DEPARTMENT, Plaintiff and Respondent, v. ROY L.E., Defendant and Appellant.

Civ. 22649.

Decided: September 28, 1984

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Frank Bell, Jr., State Public Defender, Antonia D. Radillo, Deputy State Public Defender, for defendant and appellant. L.B. Elam, County Counsel, Kathleen A. O'Connor, Deputy County Counsel, Sacramento, for plaintiff and respondent.

Defendant father challenges the order of the juvenile court continuing his minor daughter, Patricia, as a dependent child of the court.   We will reverse the order for failure of the court to appoint independent counsel to represent the minor at the continuation hearing.

FACTS

In August 1978, the minor, Patricia, was made a dependent child of the Kings County Juvenile Court upon a finding that her parental home was an unfit place for her to live because of severe physical injuries which she incurred there.   (Welf. & Inst.Code, § 300, subd. (d).) 1  She was placed in a foster home.2  Her brothers were also removed from parental custody.

In June 1979 Patricia's status as a dependent child was continued but she and her brothers were returned to parental custody.   In November 1979 Patricia suffered further severe injuries at home and she was placed in a foster home in Hanford, California.   Her brothers were left in the custody of their parents and then placed in the custody of their father upon the dissolution of the parents' marriage.

The case was transferred to Sacramento County because of a change in parental residence.   A review hearing was held in the Sacramento Juvenile Court in February 1983.3  (§ 366, subd. (a);  California Rules of Court, former rule 1382, subd. (e).)  The court appointed the public defender to represent the father and the county counsel to represent both the Sacramento County Welfare Department (Department) and the minor.   The minor was not present at the hearing and she appeared only through the county counsel.   A social worker testified for the department and recommended continuance of the minor in the foster home.4  Neither the social worker nor the county counsel spoke with the minor prior to the hearing.   The father testified in his own behalf.   The juvenile court continued the minor as a dependent child and ordered that she remain in the Hanford foster home.   This appeal followed.

DISCUSSION

A.

Section 318 says that counsel shall be appointed to represent “the child's interests” when it is alleged the minor comes within the provisions of section 300, subdivision (d).   The counsel must “represent the minor” at the “detention hearing and at all subsequent proceedings before the juvenile court.”  (subd. (b).)   The sole issue is whether the counsel must exclusively represent the child.

 The father has standing to litigate his daughter's right to counsel because the independent representation of the daughter's interests may impact upon the parents' interests in the parent-child relationship.5  Where the interests of one party to a proceeding interact with those of another party, either party has standing to litigate issues impacting the related interests.  (See Monaghan, Third Party Standing (1984) 84 Colum.L.Rev. 277, 297–310;  c.f. e.g. People v. Barksdale (1972) 8 Cal.3d 320, 333, 105 Cal.Rptr. 1, 503 P.2d 257.)   At stake in a dependency proceeding is both the child's welfare and the parent-child relationship.  (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599, 157 Cal.Rptr. 280.)   The two considerations are intertwined.   The department took the position Patricia should be retained in a foster home on grounds that her parent's home continued to be unfit.   That position may not have been taken by a counsel freed of the necessity to represent the county.   Patricia's brothers had been returned to their father's custody, apparently without threat to their safety.   The Fresno County Department of Social Services had recommended return of Patricia to her father.  (See In re David C. (1984) 152 Cal.App.3d 1189, 1207–1208, 200 Cal.Rptr. 115.)

B.

 The appointment of counsel in a section 300, subdivision (d) proceeding is governed by section 318:  “(a) [W]hen a minor who is alleged to be a person described in subdivision (d) of Section 300 appears before the juvenile court at a detention hearing, the court shall appoint counsel ․ (b) The counsel ․ shall represent the minor at the detention hearing and at all subsequent proceedings before the juvenile court․ (d) The counsel shall be charged in general with the representation of the child's interests.”   (Emphasis added.) 6  The statute imposes a multitude of investigative and trial duties upon appointed counsel.  (See § 318, subd. (d).)

We read this language as a mandate to represent the “minor's interests” unencumbered by the potential conflicting interests of the county.7

 The trial court's failure to appoint independent counsel for the minor was error.

C.

That conclusion compels an answer to the question whether the error requires reversal.   There is no necessity in this case to inquire if such error is reversible per se and we imply no view on that point.8  The least arduous standard which must be met by respondent is to persuade us it is not reasonably probable this error affected the judgment.  (See e.g. People v. Watson (1956) 46 Cal.2d 818, 836–837, 299 P.2d 243;  Traynor, The Riddle of Harmless Error (1970).)   Here this burden is not met.

The record contains no indication that the minor's counsel ever spoke to her.   The minor was not present in court during the proceedings.   The minor's counsel presented evidence of the minor's circumstances by calling as a witness a social worker with the Sacramento County Department of Social Welfare.   However, that social worker had not spoken personally with the minor.   In short, the record contains no indication the minor's surrogate counsel knew of her concerns or of her view of her situation.   Counsel cannot be said to have effectively represented the minor's interests in these circumstances.   Accordingly, we conclude a miscarriage of justice has occurred as a result of the failure to appoint independent counsel for the minor.  (See In re Christina L. (1981) 118 Cal.App.3d 737, 748, 173 Cal.Rptr. 722.) 9

The judgment is reversed.

I agree that the father has standing to pursue the issue of whether separate counsel should have been appointed for his daughter.

I agree further that section 318 of the Welfare and Institutions Code 1 contemplates that counsel to be appointed for the minor shall not also represent the county.   Subdivision (a) of section 318 provides in pertinent part, “The court may appoint the district attorney to represent the minor pursuant to section 351.” 2  The district attorney is the only public attorney named in section 318 who may represent a client with an interest in the litigation (the State of California) in addition to the minor.   It is a settled principle of statutory construction that the expression of certain things in a statute necessarily implies the exclusion of other things not expressed.  (Gilgert v. Stockton Port District (1936) 7 Cal.2d 384, 387, 60 P.2d 847;  Henderson v. Mann Theatres Corp. (1976) 65 Cal.App.3d 397, 403, 135 Cal.Rptr. 266;  People v. Mancha (1974) 39 Cal.App.3d 703, 713, 114 Cal.Rptr. 392.)   When section 318 specifically grants permission to the court to appoint the district attorney, it excludes by inference the appointment of other public attorneys, such as the county counsel, whose institutional clients have an interest in the litigation.

FOOTNOTES

1.   Welfare and Institutions Code, section 300 provides:“Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court:(a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control.   No parent shall be found to be incapable of exercising proper and effective parental care or control solely because of a physical disability, including, but not limited to, a defect in the visual or auditory functions of his or her body, unless the court finds that the disability prevents the parent from exercising such care or control.(b) Who is destitute, or who is not provided with the necessities of life, or who is not provided with a home or suitable place of abode.(c) Who is physically dangerous to the public because of a mental or physical deficiency, disorder or abnormality.(d) Whose home is an unfit place for him by reason of neglect, cruelty, depravity, or physical abuse of either of his parents, or of his guardian or other person in whose custody or care he is.(e) Who has been freed for adoption from one or both parents for 12 months by either relinquishment or termination or parental rights and for whom an interlocutory decree has not been granted pursuant to Section 224n of the Civil Code or an adoption petition has not been granted.”Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

2.   Patricia was born on November 24, 1977.   She was first declared a dependent child of the court and placed in a foster home on August 14, 1978.   Her home was alleged to be an unfit place because of neglect and abuse by her parents.   She had sustained a skull fracture, two broken wrists, a broken right ankle, contusions and abrasions.   She was returned to the custody of her parents on June 25, 1979.   The November 1979 petition was filed after Patricia was found to have fractured the femur and tibia of her right leg.Patricia's mother did not appear in the proceedings below.

3.   On July 27, 1981, the matter was transferred from Kings County to Fresno County.   On August 21, 1981, Fresno County transferred the matter to Tulare County.   On March 1, 1982, Tulare County transferred the matter to Fresno County.

4.   The recommendation was based on the father's failure to participate in a counseling program and to visit his daughter on a regular basis.

5.   See In re Richard E. (1978) 21 Cal.3d 349, 353–356, 146 Cal.Rptr. 604, 579 P.2d 495 (court considered the merits of father's allegations that independent counsel should have been appointed for his son in a proceeding to terminate parental rights (Civ.Code, §§ 232 et seq.) without any discussion of standing.)

6.   (a) Notwithstanding the provisions of Section 317, when a minor who is alleged to be a person described in subdivision (d) of Section 300 appears before the juvenile court at a detention hearing, the court shall appoint counsel.   The court may appoint the district attorney to represent the minor pursuant to Section 351.(b) The counsel appointed by the court shall represent the minor at the detention hearing and at all subsequent proceedings before the juvenile court.(c) Any counsel upon entering an appearance on behalf of a minor shall continue to represent that minor unless relieved by the court upon the substitution of other counsel or for cause.(d) The counsel shall be charged in general with the representation of the child's interests.   To that end, he shall make such further investigations as he deems necessary to ascertain the facts, including the interviewing of witnesses, and he shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings;  he may also introduce and examine his own witnesses, make recommendations to the court concerning the child's welfare, and participate further in the proceedings to the degree necessary to adequately represent the child.   In addition, the counsel shall investigate the interests of the child beyond the scope of the juvenile proceeding and report to the court other interests of the child that may be protected by other administrative or judicial proceedings, including but not limited to, a civil action pursuant to subdivision (b) of Section 11172 of the Penal Code.   The court shall take whatever appropriate action is necessary to fully protect the interests of the child.(e) Notwithstanding any other provision of law, counsel shall be given access to all records relevant to the case which are maintained by state or local public agencies.   Counsel shall be given access to records maintained by hospitals or by other medical or nonmedical practitioners or by child care custodians, in the manner prescribed by Section 1158 of the Evidence Code.

7.   Accordingly, the department's reliance on In re Laura F. (1983) 33 Cal.3d 826 is misplaced because appointment of counsel in a proceeding to terminate parental rights is discretionary.  (See Civ.Code, § 237.5, subd. (a).)

8.   We eschew reaching this point as it is one of some difficulty and as related unnecessary to our resolution here.   The difficulty lies in gauging the effect of In re Richard E., supra, 21 Cal.3d 349, 146 Cal.Rptr. 604, 579 P.2d 495.   In that case the Supreme Court said failure to consider advisability of discretionary appointment of counsel in section 232 proceedings was error in the nature of an abuse of discretion.   However, the Supreme Court concluded that no prejudice was shown to have resulted from this shortcoming and concluded reversal was unwarranted.   This logic has been questioned (see In re Jacqueline H. (1979) 94 Cal.App.3d 808, 814, 156 Cal.Rptr. 765) but In re Richard E. remains a valid precedent.   The duty to appoint separate counsel for the child is not discretionary in the proceedings we review.   Whether this consideration suffices to distinguish In re Richard E. we do not reach.  (Compare Hammett v. McIntyre (1952) 114 Cal.App.2d 148, 158, 249 P.2d 885.)

9.   In view of our resolution of this contention of error the remaining points raised by the parties do not warrant discussion.

1.   All statutory references are to this code.

2.   Section 351 requires the consent of the juvenile court judge for such an appointment.  (See also rule 1334, Cal. Rules of Court.)

BLEASE, Associate Justice.

PUGLIA, P.J., concurs.

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