Department of Adoptions v. Lillian D.

Opinion

THE COURT.* On petition of the Los Angeles County Department of Adoptions pursuant to Civil Code section 232, the superior court found that appellant Lillian D. had abandoned three of her minor children. That court entered judgment declaring the children free from appellant’s custody and control. Appellant, an indigent represented by counsel in the trial court (see Civ. Code, § 237.5), filed a notice of appeal and now moves for appointment of counsel on appeal.

[346]In In re Simeth, 40 Cal.App.3d 982 [115 Cal.Rptr. 617], this court appointed counsel on an indigent mother’s appeal from a juvenile court order finding her daughter a dependent child pursuant to Welfare and Institutions Code section 600. We found the appointment authorized by the amendment of certain statutes subsequent to our earlier decision in In re Robinson, 8 Cal.App.3d 783 [87 Cal.Rptr. 678], cert. den., sub. nom., Kaufman v. Carter (1971) 402 U.S. 964 [28 L.Ed.2d 128, 91 S.Ct. 1624], The concurring opinion in Simeth concluded that appointment of counsel was also implicitly authorized by the then recently adopted rule 251 of the California Rules of Court.1

The present case initiated under Civil Code section 232 (hereafter § 232) is similar in many respects to the Simeth proceeding initiated under Welfare and Institutions Code section 600 (hereafter § 600). In each case a parent lost custody of a minor child or children on the petition of a government agency, either on a finding of abandonment (§ 232), or a finding of lack of parental care (§ 600). In each case the indigent parent was represented by appointed counsel in the trial court.

In several respects the argument for appointing counsel for a parent in a § 232 appeal is more compelling than in a § 600 appeal. Civil Code section 237.5 requires the appointment of trial counsel for indigent parents in a § 232 proceeding, whereas Welfare and Institutions Code section 634 merely authorizes such an appointment in a § 600 (In re Joseph T., 25 Cal.App.3d 120, 127-130 [101 Cal.Rptr. 606].) A final judgment in a § 232 proceeding may have greater and more immediate consequences to the parent than a final judgment in a § 600 proceeding, for a judgment under § 232 may declare the minor children free from parental custody and control and speedily lead to an adoption in which the parent’s right to custody is permanently lost (Civ. Code, § 224, subd. 1), while, in contrast, an adverse judgment in a § 600 proceeding can only result in a parent’s loss of custody on a basis. (Welf. & Inst. Code, §§ 727, 729, 775.)