Entitlement of Competent Counsel When Parental Termination is at Issue

Alameda County Social Services Agency v. M.B. S260928 First Appellate District, Division One A158143 Alameda County Superior Court JD02839802

Mother [M] gave birth to Son [S] in 2016.  Less than a year later, the Alameda County Social Services Agency [Agency] petitioned the juvenile court to remove S from M’s custody and be placed in foster care.  M was herself a minor, still in high school, and had mental health problems, including depression, that prevented her from taking care of S.  The court approved the Agency’s request and ordered reunification services for M.  Several months later the court ordered the reunification services be terminated, but told M that she could try again later for a modification. 

Two years after the original foster care determination, M was given a date for a modification hearing.  However, she had a medical emergency the day of the hearing and could not attend.  Because M’s original attorney was in the process of quitting her job, the court appointed another attorney to represent M.  At the hearing, the court rejected M’s request for modification.  Five days after the hearing, M told her attorney to appeal the court’s decision.  Unfortunately, the new attorney forgot to file the appeal in a timely manner, and M’s appeal was rejected.  M then filed a request with the appeal’s court to have her case heard because she was denied competent counsel.  Not filing M’s appeal in a timely manner was clearly incompetent counel.

The Appellate Court agreed with M:

“By statute, every parent facing the termination of parental rights is entitled to the assistance of competent counsel (Welf. & Inst. Code, §§ 317, 317.5, 366.26, subd. (f)(2)), as well as the right to appeal an adverse ruling (id., § 366.26, subd. (i)(1)). When an attorney fails to file a timely appeal in accordance with a client’s instructions, the parent may seek relief based on the attorney’s failure to provide competent representation. Because time is of the essence in matters affecting children’s long-term placement, whether relief is granted will depend on the parent’s promptness and diligence in pursuing the appeal.”

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