Los Angeles County Department of Public Social Services v. Dennis H.

Opinion

KINGSLEY, Acting P. J. In a dependency action, the father appeals an order terminating his joint custody of his daughter. We reverse.

[49]Facts

Immediately following an acrimonious divorce proceeding, the mother of the minor herein moved to terminate the joint custody that the appellant, her recently divorced husband, had been awarded over their four-year-old daughter, Christina. The mother alleged that the father had sexually molested Christina and a petition was filed under Welfare and Institutions Code, section 300, subdivisions (a) and (d), to declare the daughter a dependent child. After hearing the evidence, which consisted almost entirely of the testimony of Christina, the juvenile court sustained the petition, terminating the father’s joint custody and denying him visitation rights until he participated in counseling. The father appeals, contending chiefly that he was denied effective assistance of counsel.

I

The threshold issue to be addressed here is whether a parent is entitled to effective assistance of counsel at a dependency hearing. The respondent, the Los Angeles County Department of Public Social Services, cites In re Michaels. (1981) 127 Cal.App.3d 348, 364 [179 Cal.Rptr. 546], an opinion by Division One of this district for the proposition that a parent is not. That opinion reasoned that dependency cases are civil in nature, that there is no right to competent counsel in a civil case and that, therefore, there is no right to effective assistance of counsel in a dependency hearing. While admirably succinct, this holding greatly oversimplifies the issues involved.

Unlike the average civil case, where a party without the resources or acumen to obtain legal representation has no recourse but to confront the judicial system alone, in many dependency matters one has a constitutional right to an attorney. Writing in Cleaver v. Wilcox (9th Cir. 1974) 499 F.2d 940, 945, the Ninth Circuit concluded that “due process requires the state to appoint counsel whenever an indigent parent, unable to present his or her case properly, faces a substantial possibility of the loss of custody or of prolonged separation from a child [footnote omitted].” Acting on this ruling, in 1977 California Rules of Court, rules 1334(c) and 1363(c) were enacted. These rules provide that in a dependency hearing under Welfare and Institutions Code section 300, “Counsel shall be appointed for any parent or guardian unable to afford counsel whenever it appears that person is unable to adequately present the case and faces a substantial possibility of loss of custody or of prolonged separation from the minor. ’ ’ Clearly, therefore, in many cases an indigent parent possesses both a statutory and constitutional right to appointed counsel.