Other Cases Affecting Children

Guardianship of Elan E. (2000) 85 Cal.App.4th 998 [102 Cal.Rptr.2d 528]. Court of Appeal, Second District, Division 6.

The probate court ordered a child's grandparents to pay the grandchild's attorney's fees and costs. The court appointed an attorney for the child in a guardianship proceeding. The attorney acknowledged that he would not be compensated for his services understanding that both the child and his parents were indigent. The attorney stated on some occasions that he was appearing pro -bono. However, when the petition for guardianship was granted the attorney moved to have the grandparents pay the child's attorney's fees and costs. The grandparents appealed.

The Court of Appeal reversed the decision of the probate court. Section 1470 of Probate Code pertains to the appointment of counsel. Section 1470(c)(2) states that if an attorney is appointed to represent a child, compensation is to be paid by the child's parents or the child's estate. The trial court interpreted the term "parent" as including a guardian, such as a grandparent or relative caregiver. In determining the legislative intent of the statute, the appellate court found the language in section 1470 unambiguous. The statute provides no authority for compelling a nonparent to pay a guardianship attorney's fees and costs. The attorney argued that the appointment of counsel in guardianship proceedings is comparable to the appointment of counsel in child custody cases, as provided by the Law Revision Commission. In child custody cases, the child's attorney's fees and costs "shall be paid by the parties in the proportions the court deems just." (Fam. Code, § 3153(a).) The appellate court stated that the Law Revision comment referred only to the appointment of counsel, not to attorney compensation. The appellate court determined that section 1470 was to be interpreted literally and it was not in the position to construe the term "parent" as including grandparents. The appellate court noted, "The trial court's ruling may be a fair result and, were we in the Legislature, we might vote for statute authorization to require grandparents to assume financial responsibility for an indigent minor's attorney's fees and costs in these circumstances." The appellate court reversed the trial court's decision ordering attorney's fees and costs and indicated that the parties must bear their own costs on appeal.