Parent Entitled to Attorney When Child is Placed in Out-of-Home Care

Father [F] and Mother [M] were the parents of their son B.  In 2017, F and M were arrested when they engaged in domestic violence in front of B.  It was determined that both parents abused drugs, specifically marijuana and methamphetamines.  B was removed from the family home, but later placed in F’s care under parent reunification under the guidance of the Los Angeles County Department of Child and Family Services [DCFS].  M lived in an apartment below F and B.  One month later their son C was born.  DCFS placed C’s care in the hands of F, but continued to monitor F’s parenting of B and C.  Two months later, both F and M were re-arrested.  F arranged for his aunt [A] to take care of the children.  He signed an affidavit and consent form asking DCFS to place the children in A’s care.

In August of 2017, DCFS petitioned the juvenile court to make the boys wards of the County of Los Angeles.  F was not notified of the petition and subsequent hearing; however, he was represented by an attorney for B’s case, but not C’s.  At a subsequent hearing, the judge granted DCFS’s request and detained the boys.  Under the Seiser & Kumli, Cal. Juvenile Courts Practice and Procedures (2019), “the purpose of the initial or detention hearing is to determine whether to detain the child from parental custody, to notify parties of the allegations, to consider whether to appoint counsel and whether to involve the court in supervision of the case.”

In October of 2017, F was sentenced to 25 years in prison, and on October 25, 2017, the court scheduled the boys’ detainment hearing for November 20,2017 and again in February of 2018, when neither F nor a representative for him appeared, the case.  The case was heard in November of 2018, without F or his representative, even though throughout the entire process, F requested to attend or be represented.  In November, the court determined F to be the boys’ biological father, made the boys wards of the county and granted F monitored visitations.  F appealed.

The Appellate Court agreed with F:

According to the Appellate Court and Section 317 of the Seiser & Kumli, Cal. Juvenile Courts Practice and Procedures (2019), “[a] juvenile court must appoint counsel for an indigent parent when the agency recommends that the child be placed in out-of-home care, ‘unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.’  …The representation shall continue unless the juvenile court relieves counsel.”

Specifically, when a parent is in jail the court stated:  “With respect to incarcerated parents in particular, Penal Code section 2625, subdivision (d) bars the adjudication of a [detainment] petition without the physical presence of both the incarcerated parent and his or her counsel, unless the parent waives the right to attend… Thus, an incarcerated parent may waive his or her appearance, but the juvenile court may only adjudicate the petition if that parent has representation at the hearing.”

In this case, F never waived his right to counsel, but continually asked for an attorney.  The juvenile court should have provided one for him.

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