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IN RE: CHANEL S. et al., Minors. MICHELE S., Plaintiff and Respondent, v. LISA S., Defendant and Appellant.
OPINION
In affirming a judgment freeing minors from a mother's custody and control under Family Code section 7820 et seq., we hold an indigent parent appealing from such a judgment is entitled to appointment of counsel. We also hold that, in view of the age of the children, the trial court did not abuse its discretion in excusing the statutory requirement that the children be interviewed.
FACTS
Respondent Christian 1 and appellant Lisa were married from 1988 until their 1993 divorce. Chanel was born to them in 1988 and Chelsea in 1990. Christian and respondent Michele married in 1994; later that year, they filed a petition to free the minors from Lisa's custody and control under Family Code section 7820 et seq.2 The proceedings were initiated in connection with a proposed stepparent adoption by Michele. After a six-day trial, the court entered judgment terminating Lisa's parental rights based on her mental disability under section 7827 and abandonment under section 7822, subdivision (b).
The record supplies substantial evidence to support the decision of the trial court, based on the testimony of three experts and a number of percipient witnesses. Since appellant does not argue the absence of such substantial evidence, it is not necessary for us to provide a detailed summary of the factual basis for the court's decision. Suffice it to say, Lisa had a history of drug abuse and criminal activity; her last conviction, in 1993, was for grand theft auto, a felony, for which the court sentenced her to 16 months in prison. Also, during 1993, she was twice unsuccessful in completing rehabilitation programs.
DISCUSSION
Parent's Right to the Appointment of Counsel on Appeal
Lisa requested we appoint counsel to represent her on this appeal. At the time of her request, two Court of Appeal decisions had reached contrary conclusions on the issue of whether an indigent appealing parent, whose rights had been terminated in a proceeding under section 7800 et seq., as distinguished from proceedings under Welfare and Institutions Code section 300 et seq., is entitled to such appointed counsel. In re Curtis S. (1994) 25 Cal.App.4th 687, 30 Cal.Rptr.2d 739 held there is no such right to counsel. (Id. at p. 693, 30 Cal.Rptr.2d 739.) Appellate Defenders, Inc. v. Cheri S. (1995) 35 Cal.App.4th 1819, 42 Cal.Rptr.2d 195 reached the opposite result. (Id. at pp. 1825–1826, 42 Cal.Rptr.2d 195.)
We acquiesced to appellant's request but asked counsel to brief the issue of her right to appointed counsel.3 We also invited the State of California to file an amicus brief on this limited question and served a copy of the request on the Attorney General. The state declined our invitation.
Since we requested this briefing, our Supreme Court filed In re Bryce C. (1995) 12 Cal.4th 226, 48 Cal.Rptr.2d 120, 906 P.2d 1275 which deals with related issues. Bryce C. notes the statutory mandate for appointment of counsel under section 7895 (formerly Civil Code section 237.7) is, by its terms, limited to situations where the child who is the subject of the termination proceedings is a “dependent child of the juvenile court.” (Id. at p. 230, 48 Cal.Rptr.2d 120, 906 P.2d 1275.) This does not pertain to the children who are the subject of this dispute. However, Bryce C. also holds that, by mandating appointment of counsel under the specified circumstances, the Legislature did not intend to preclude such appointment where the child is not a dependent of the juvenile court. (Id. at p. 233, 48 Cal.Rptr.2d 120, 906 P.2d 1275.)
Bryce C. involves the issue of whether an indigent respondent parent in a proceeding such as this one is entitled to appointed counsel and holds the court in its discretion may, but is not mandated to, make such an appointment. The case further provides the criteria for the exercise of this discretion. Bryce C., after reviewing the legislative history of section 7895, notes, “The legislative language and history both demonstrate an intent to require counsel for appellants, but not necessarily for respondents.” (Id. at p. 232, 48 Cal.Rptr.2d 120, 906 P.2d 1275.) In the context of the discussion, we read this statement to refer to proceedings under section 7800 et seq., as well as proceedings under Welfare and Institutions Code section 300 et seq.
Although the above quoted statement, as pertaining to appellants, is dictum, we find it persuasive. This is particularly true when considering the Bryce C. discussion of the distinctions between appellants and respondents and the criteria set out by the court for the exercise of discretion in determining whether the court should appoint counsel for an indigent respondent parent. The court observes the greater burden placed upon an appellant and notes the presumptions favoring the respondent. We therefore are compelled to conclude, based on the discussion in Bryce C., that an indigent appellant parent in a proceeding under section 7800 et seq., is entitled to the appointment of counsel.
The Failure to Interview the Children
The only substantive attack on the judgment is based on the alleged failure of the probation officer to comply with the requirements of section 7851. Section 7850 requires that, in proceedings under section 7800 et seq. an investigation be conducted by a juvenile probation officer or other official designated to administer the public social services program. Section 7851 requires that this investigator interview the children, explain the proceedings to them, elicit information from them as to their feelings and thoughts and attitude towards the parents, advise them of their right to attend the hearing, and report the results of this discussion to the court. Subdivision (c) permits the investigator to forego contacting the children “if the age, ․ or other condition of the child precludes the child's meaningful response․” Under these circumstances, “a description of the condition shall satisfy the requirement․” (Ibid.) The report filed by the investigator and used by the court indicates the investigator did not contact Chanel and Chelsea; it notes, “Because of the age of the children it was not possible to interview them in reference to these proceedings, their age precluding a meaningful response to any explanations, inquiries or information concerning these proceedings.”
At the time of the preparation of the report, Chanel was seven and Chelsea was five years old. We cannot say the trial court abused its discretion in accepting the explanation.
Relying on In re Linda W. (1989) 209 Cal.App.3d 222, 257 Cal.Rptr. 52, appellant argues the failure to interview the children mandates reversal. Linda W. held the failure to prepare an investigation report as required by section 7850 (former Civil Code section 233) in a termination of parental rights proceeding mandated a reversal. (Id. at pp. 226–227, 257 Cal.Rptr. 52.) Here there was no such failure. The investigators prepared two detailed reports, totaling some 26 pages and submitted them to the court. Nor did the investigator fail to comply with section 7851. Under subdivision (c) of section 7851, the investigator is expressly excused from interviewing the children, provided the reasons therefore are described in the report. There was full compliance with sections 7850 and 7851.
The judgment is affirmed.
FOOTNOTES
1. We refer to all parties by their first name to protect their anonymity in the interest of the privacy rights of the children.
2. All further statutory references are to the Family Code unless otherwise indicated.
3. We received a similar request from respondent Michele. We denied her request because she made an inadequate showing of indigency. We therefore did not consider whether, as a proposed adopting parent, she would be entitled to appointment of counsel.
RYLAARSDAM, Associate Justice.
SILLS, P.J., and WALLIN, J., concur.
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Docket No: No. G018373.
Decided: May 28, 1996
Court: Court of Appeal, Fourth District, Division 3, California.
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