Dependency Case Law

In re S.D. (Sept. 27, 2002) 102 Cal.App.4th 560 [125 Cal.Rptr.2d 570]. Court of Appeal, Fifth District.

The juvenile court terminated the parental rights of a father pursuant to Welfare and Institutions Code section 366.26.

This appeal centered around the enactment of section 326.5, effective July 1, 2001, in which the Legislature mandated the appointment of a guardian ad litem to represent the child's interest who is not the social worker or probation officer who filed the dependency petition. This section repealed former section 326, which named the probation officer or social worker who filed a dependency petition under section 300 as the guardian ad litem unless the court appointed another adult. This case was pending on July 1, 2001, the effective date of the legislative changes. The petition leading to termination of parental rights was filed on September 20, 1999. At that time, the social worker filing the petition was, by application of law, appointed guardian ad litem for both children. Both children were removed from the home and the petition was sustained. The court appointed independent counsel to represent the children on March 5, 2001. After an unsuccessful reunification effort, an adoptions assessment report was filed on July 16, 2001, and the case was set for a permanent plan hearing pursuant to section 366.26. The permanency plan hearing occurred on March 14, 2002, and the father's parental rights as to his two minor children were terminated on April 2, 2002. However, a new guardian ad litem was never appointed and the order appointing independent counsel did not include a charge that counsel act as guardian ad litem. On appeal, the father contended that the court's failure to appoint an independent guardian pursuant to the mandates of section 326.5 rendered the termination order, and all orders of the court after July 1, 2001, null and void.

The Court of Appeal held that while the legislation clearly mandated the juvenile court to appoint an independent guardian effective July 1, 2001, there clearly was no requirement that any juvenile court order in a case pending on July 1, 2001, be declared null and void unless a new guardian ad litem were appointed. Rather, the appellate court contended, the impact on pending cases revolves around whether the Legislature had intended the statutory changes to be prospective or retroactive in application. The appellate court examined Senate Bill 2160 (1999-2000 Reg. Sess.), which was responsible for these changes, and determined that the history of the bill revealed two main purposes: (1) to give abused and neglected children in dependency courts a voice by creating a presumption that the child would benefit from the appointment of independent counsel who was focused solely on the best interest of the child, and (2) to bring California dependency law into compliance with federal standards in order to make federal grant funding available to the state. Federal standards require the guardian ad litem be either an attorney or a Court Appointed Special Advocate; they do not allow the social worker to fill this role. The court noted that statutes are ordinarily presumed to operate prospectively; a retroactive application is appropriate only where there is a clear legislative intent to do so. (Evangelators v. Superior Court (1988) 44 Cal.3d 1188, 1207-1208.) The court concluded that there was nothing in the legislative history to support a finding that the Legislature had intended to apply the statutory changes retroactively. The court further stated that in light of the severe consequences of applying the changes retroactively, they refused to do so without a clear legislative mandate.