Carter v. Kaufman

Opinion

FLEMING, J. Constance Kaufman, on behalf of herself and her five minor children, appeal's a juvenile court order of 17 October 1968 which renewed the status of four of her children as dependents of the court and terminated the dependency status of the fifth child, Michael Robinson. The original order of dependency had been entered in 1963 on the ground that Constance was emotionally disturbed and incapable of providing proper care and supervision for her children. (Welf. & Inst. Code, § 600, subd. (a).) Thereafter, the dependency order was renewed annually as required by statute. (Welf. & Inst. Code, § 729.)

Present at the hearing on 17 October 1968 were appellant Constance, her son Michael, Michael’s father Douglas Robinson, Thomas McGurrin (attorney for Douglas Robinson and Michael), and a probation officer who represented the four younger children between the ages of 5 and 10. The court heard Michael testify that he was happy living with his father, and it considered reports on the progress of the children prepared by the probation officer and by a social worker. Thereafter, the court terminated Michael’s dependency status and continued in effect the dependency status of the four other children.

1. Appellant contends the proceedings were defective because neither she nor her children were furnished the services of appointed counsel to which they were entitled under the federal and state Constitutions and under sections 634, 679, 700, and 729 of the Welfare and Institutions Code.

We find no statutory or constitutional right to appointed counsel for either parent or child in a proceeding in which the dependency status of the child is the issue. Sections 634, 679, 700, and 729 of the Welfare and Institutions Code and section 27706, subdivision (e) of the Government Code make it clear that the minor’s right to appointed counsel is limited to cases under sections 601 and 602 of the Welfare and Institutions Code (delinquency proceedings) and neither the minor nor the parent is entitled of right to appointed counsel at public expense in a proceeding to [786]adjudicate the dependency status of a child. Cases relied upon by appellant, In re Gault (1967) 387 U.S. 1 [18 L.Ed.2d 527, 87 S.Ct. 1428], and Kent v. United States (1966) 383 U.S. 541 [16 L.Ed.2d 84, 86 S.Ct. 1045], are inapposite since they involved charges of wrongdoing which would fall within sections 601 and 602 of the Welfare and Institutions Code. Gault does not require that the constitutional safeguards of counsel applicable to criminal cases be met in all civil cases, as appellant contends; rather it requires counsel only in cases denominated “civil” which are basically criminal in nature. We view a proceeding to adjudicate the dependency status of a child as a true civil cause, comparable in essentials to a child custody controversy between parents, except that the controversy is not between parents but one between a parent (or parents) and the state as parens patriae.