Dependency Case Law

In re J.W. (Nov. 14, 2002) 29 Cal.4th 200 [126 Cal.Rptr.2d 897]. Supreme Court of California.

The superior court terminated the parental rights of a mother who had not seen or supported her child since she left the child in the care of the father in 1995. The mother appealed and requested the appointment of appellate counsel under Family Code section 7895, which requires a reviewing court to appoint counsel for an indigent parent “[u]pon appeal from a judgment freeing a child who is a dependent child of the juvenile court from parental custody and control.” However, the child was not in the dependency system. The Court of Appeal originally appointed appellate counsel for the mother, but later vacated that order as improvidently granted, stating that because the child was not a juvenile court dependent, the mother did not have an automatic right to appellate counsel. The appellate court allowed the mother to apply for appointed counsel by providing both a financial declaration and a written explanation of why she needed counsel, but subsequently denied her application for “lack of good cause shown.” The mother petitioned the Supreme Court for review of the Court of Appeal’s order denying appointed counsel to represent her on her appeal from the judgment terminating her parental rights. Upon granting review, the Supreme Court appointed counsel to represent her in the proceedings.

The Supreme Court construed Family Code section 7895 as establishing a right to appointed appellate counsel for any indigent parent appealing from a judgment terminating parental rights, regardless of whether the child was one involved in the dependency system. While the Supreme Court recognized that Family Code section 7895, on it’s face, appeared to restrict the right to appellate counsel to actions in which the child is a juvenile court dependent, it concluded that the legislative intent indicated otherwise. The Supreme Court noted that statutory language should not be given a literal meaning if doing so would result in absurd consequences that the Legislature could not have intended. In analyzing the legislative intent, the Supreme Court determined that a construction of Family Code section 7895 that limits it to proceedings affecting juvenile court dependents makes the entire provision superfluous because the termination of parental rights for juvenile court dependents is governed by the Welfare and Institutions Code (not the Family Code). Therefore, the Supreme Court examined the legislative history of section 7895 in order to determine what purpose the Legislature intended section 7895 to serve.

The Supreme Court first noted its decision in In re Jacqueline H. (1978) 21 Cal.3d 170, in which it held that a reviewing court is required “to appoint counsel for any indigent parent appealing from an order terminating parental rights pursuant to Civil Code [former] section 232.” (Id. at p. 177.) Six years later, the Legislature enacted former section 237.7 of the Civil Code, which stated that the appellate court shall appoint counsel for an indigent parent on his or her request upon appeal from a judgment freeing a minor who is a dependent child of the juvenile court from parental custody and control. With one minor, nonsubstantive change, former section 237.7 of the Civil Code was reenacted in Family Code section 7895. An analysis of the legislative history of former section 237.7 of the Civil Code revealed that both the Senate and Assembly Committee on the Judiciary believed that former section 237.7 would codify Jacqueline H.’s requirement that an indigent appellant be entitled to appointed counsel on appeal from an action declaring a child free from parental custody and control. Therefore, the Supreme Court concluded that in order to promote the legislative purpose of codifying the holding of Jacqueline H., Family Code section 7895 must be construed as applying to all indigent parents appealing from judgments freeing their children from their custody and terminating their parental rights, even if their child is not a juvenile court dependent. Thus, an appellate court must appoint counsel for any indigent parent appealing a judgment freeing his or her child from parental custody and control.

In light of its construction of Family Code section 7895, the Supreme Court reversed the appellate court’s order denying counsel and remanded the matter with directions to appoint counsel for the mother.