Dependency Case Law

In re Charles T, (Oct. 4, 2002) 102 Cal.App. 4th 869 [125 Cal.Rptr.2d 868]. Court of Appeal, Third District.

The juvenile court terminated a mother's parental rights and freed the child for adoption. The Sacramento County Department of Health and Human Services (DHHS) had removed the child from the mother's custody soon after birth because both the mother and the child had tested positive for cocaine. The mother had a long-term substance abuse problem and had given birth to children who tested positive for drugs in the past. At the detention hearing, the juvenile court appointed counsel for the child but did not appoint a guardian ad litem, and the mother did not object. At the jurisdictional/ dispositional hearing, the juvenile court denied reunification services to the mother, due to her chronic substance abuse and failure to reunify with the child's siblings, and set a Welfare and Institutions code section 366.26 hearing. At the section 366.26 hearing, the court terminated the mother's parental rights and selected a permanent plan of adoption for the child. Again, a guardian ad litem was not appointed for the child during the dispositional hearing or the section 366.26 hearing, and the mother did not object. The mother appealed the juvenile court's decision terminating her parental rights on the grounds that the juvenile court failed to appoint a guardian ad litem for the child pursuant to recently enacted section 326.5. According to the mother, the new law requires appointment of an attorney or Court-Appointed Special Advocate (CASA), in addition to counsel appointed to represent the child.

The Court of Appeal affirmed the juvenile court's decision terminating the mother's parental rights and freeing the child for adoption. The appellate court noted that although the mother had standing, failure to appoint a guardian ad litem is subject to waiver if not raised in the trial court. However, the appellate court exercised its discretion to address the merits of the case due to the importance of the guardian ad litem issue. The appellate court indicated that, in 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C. § 5101) to provide federal funds to the states for the purpose of identifying, preventing, and treating child abuse and neglect. One of the criteria for states to receive CAPTA funding is the appointment of a guardian ad litem to represent the child in each and every case involving an abused or neglected child. California promptly passed section 326 to establish programs in compliance with CAPTA; however, due to an oversight, the requirement for a guardian ad litem was not included, and this legislation was later amended to add section 326.5, which includes this requirement. Based on both CAPTA and section 326.5, as well as the comments from the Judicial Council and legal commentators, the appellate court concluded that the function of the guardian ad litem for a minor in dependency proceedings is distinct from that in other civil adversarial proceedings. The appellate court reasoned that dependency proceedings are not adversarial as to the minor and the role of a guardian ad litem in dependency proceedings is more limited being primarily determined in the context of qualifying for federal funding.

Furthermore, the appellate court held that Congress, in enacting CAPTA's requirement for appointment of a guardian ad litem in abuse and neglect cases, only intended that an individual with the legal knowledge or experience found in an attorney or CASA be appointed to represent and protect the interests of the child. The appellate court rejected the mother's argument that section 326.5 requires the appointment of a guardian ad litem in addition to counsel, reasoning that, in enacting CAPTA, Congress was simply mandating some kind of independent representation for the minor. The court stated that a child's legal counsel can also act as a dependency guardian ad litem for the child because the role of counsel as described in Welfare and Institutions section 317 is similar to the role of a traditional adversarial guardian ad litem. The court also asserted that reading CAPTA to require both legal counsel and a separate attorney acting as guardian ad litem to protect the child's interests would cause a substantial expenditure of resources and would reduce funding for the care and treatment of abused and neglected children. Accordingly, the appellate court affirmed the juvenile court's decision terminating the mother's parental rights on the grounds that appointment of a separate guardian ad litem for the child was not required.