In Re Tanya H.

17 Cal. App. 4th 825, 21 Cal. Rptr. 2d 503
CourtCalifornia Court of Appeal
DecidedAugust 3, 1993
DocketB071061
StatusPublished
Cited by15 cases

This text of 17 Cal. App. 4th 825 (In Re Tanya H.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Tanya H., 17 Cal. App. 4th 825, 21 Cal. Rptr. 2d 503 (Cal. Ct. App. 1993).

Opinion

17 Cal.App.4th 825 (1993)
21 Cal. Rptr.2d 503

In re TANYA H. et al., Persons Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDERN'S SERVICES, Plaintiff,
v.
TONY B., SR., Defendant and Appellant; THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Real Parties in Interest and Respondents.

Docket No. B071061.

Court of Appeals of California, Second District, Division One.

August 3, 1993.

*827 COUNSEL

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff.

De Witt W. Clinton, County Counsel, and Frederick R. Bennett, Assistant County Counsel, for Real Parties in Interest and Respondents.

OPINION

VOGEL (Miriam A.), J.

In dependency proceedings, an indigent parent is entitled to court-appointed counsel who "shall continue to represent the parent ... unless relieved by the court upon the substitution of other counsel or for cause...." (Welf. & Inst. Code, § 317, subd. (d).)[1] Without reference to this statute, the Los Angeles Juvenile Dependency Court adopted a "policy memorandum" providing that attorneys appointed to represent indigent parents are to be relieved following the first review of a permanent placement plan (§ 366.25, subd. (d)) "unless good cause to the contrary is individually shown by any attorney seeking to remain appointed on the case." On this appeal, we hold the policy is inconsistent with the statute and we therefore reverse an order relieving a father's attorney.

FACTS

The two minors involved in this case were both born under the influence of cocaine, one in 1986 (Tony B.), the other (Tony's sister, Tanya H.) in 1988. Although each child was the subject of separate juvenile court proceedings at the time of birth, those proceedings were terminated in 1987 (Tony's case) and 1989 (Tanya's case). In 1990, the Los Angeles County Department of Children's Services petitioned the juvenile court to again intervene on the minors' behalf because the mother (Tuesday H.) was addicted to cocaine and unable to care for the children and the father (Tony B., Sr.) was unwilling and unable to care for them. (§ 300.) Shortly thereafter, attorneys were appointed to represent the children, the mother and the *828 father. (§ 317.) On December 18, 1990, at a default jurisdictional hearing, the petition was amended and sustained (§ 355) and the children were placed with their paternal grandmother.

On March 4, 1992, all three attorneys attended a permanency planning hearing where, without objection, the juvenile court determined there was no reasonable possibility of reunification and found it was unlikely that either minor could or would be adopted. (§§ 366.21, 366.25, 366.26.) DCS was ordered to facilitate long-term foster care and the existing placement order was continued.

On September 2, 1992, the juvenile court reviewed DCS's permanent plan (§ 366.25, subd. (a)) and, without objection, accepted DCS's recommendations and ordered that the children remain with their grandmother in long-term foster care. After noting that the mother had not seen the children for an entire year, the court relieved the mother's attorney (he was not present at the hearing). Over the father's objection, the juvenile court then relieved his attorney "pursuant to the memo" and, the next day, denied the father's petition for rehearing (which raised the same points articulated the day before). The father appeals from the order relieving his attorney.[2]

DISCUSSION

As he did in the trial court, the father claims on this appeal that the policy memorandum violates the statute. We agree, and therefore do not reach his alternative due process claims.

I.

The statute is clear on its face. Under subdivision (b) of section 317, when it appears to the court that a parent or guardian of the minor desires counsel but "is presently financially unable to afford and cannot for that reason employ counsel, and the minor has been placed in out-of-home care, or the petitioning agency is recommending that the minor be placed in out-of-home care, the court shall appoint counsel, unless [the right to counsel is knowingly and intelligently waived]." Subdivision (c) of section 317 covers the appointment of counsel for the minor. Under subdivision (d) of section 317, "[t]he counsel appointed by the court shall represent the parent, guardian, or *829 minor at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent or minor unless relieved by the court upon the substitution of other counsel or for cause. The representation shall include representing the parent or the minor in termination proceedings and in those proceedings relating to the institution or setting aside of a legal guardianship." (Italics added.)

(1a) There is nothing vague or ambiguous about the legislative command — in the absence of a waiver, the juvenile court must appoint an attorney to represent an indigent parent at the detention hearing and at all subsequent proceedings, and the attorney shall continue to represent the parent unless relieved by the court upon the substitution of other counsel or for cause. Accordingly, there is no need to divine the Legislature's intent by reference to the statute's history or otherwise — we simply construe the statute to mean what it says. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218-219 [188 Cal. Rptr. 115, 655 P.2d 317] [if statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it].)

II.

The juvenile court's policy memorandum[3] was adopted on July 16, 1992, and amended on September 1, 1992. As relevant to the issue in this case, this is what it says:

"The Juvenile Court is currently involved in a far-reaching discussion with the Superior Court, the Los Angeles County Grand Jury, the Los Angeles County Board of Supervisors and its Chief Administrative Officer (CAO), as well as with the Dependency Court Legal Services Corporation (DCLS) and the members of the Juvenile Courts Bar Association (JCBA), on issues regarding the quality and costs of the legal representation provided to parents and children in the Dependency court system.

"These discussions, which are taking place against the background of [the] worst Federal, State and County fiscal crisis in recent memory, compels [sic] the Court to look at alternative methods for controlling expenditures for legal services, without adversely affecting the constitutional rights of individual clients or negatively impacting the court's mandatory time frames for *830 timely completion of arraignment/detention, adjudication and disposition hearings in dependency cases.

"The court must also ensure that a sufficient number of attorneys are available to staff an expanding dependency court. The recent necessity for transferring ten panel attorneys ... points to a serious shortage in the availability of qualified, experienced dependency attorneys.

"Consistent both with these requirements and with its reading of current State and Federal Law, the Dependency Court establishes the following policy:

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Cite This Page — Counsel Stack

Bluebook (online)
17 Cal. App. 4th 825, 21 Cal. Rptr. 2d 503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tanya-h-calctapp-1993.