Orange County Social Services Agency v. Simone S.

[352]Opinion

SILLS, P. J. Simone S. appeals an order terminating her parental rights to Sean S. (Welf. & Inst. Code, § 366.26.) She (well, to be more precise, her attorney on appeal) claims the reunification services offered her by the social services agency were inadequate, and the juvenile court erred in denying her petition to set aside a prior order based upon a change of circumstances. The social services agency disputes those contentions, In addition, it contends the appeal must be dismissed because only Simone’s trial attorney signed the notice of appeal and there is no evidence Simone actually consented to its filing.

The rule is that a client’s actual consent is required for an appeal from an order terminating parental rights pursuant to Welfare and Institutions Code section 366.26. (In re Alma B. (1994) 21 Cal.App.4th 1037, 1043 [26 Cal.Rptr.2d 592].) The primary reason is that juvenile dependency cases are “ ‘civil in nature, designed not to prosecute a parent, but to protect the child.’ ” (In re Malinda S. (1990) 51 Cal.3d 368, 384 [272 Cal.Rptr. 787, 795 P.2d 1244].) Because the focus at the selection and implementation hearing is on the fundamental interest of the child “in the opportunity to experience a stable parent-child relationship” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254 [19 Cal.Rptr.2d 698, 851 P.2d 1307]), a trial attorney has no legal or ethical duty to file a notice of appeal on behalf of a parent who has not consented to its filing. A lack of consent is shown when a parent, through his or her actions, demonstrates no true interest in preserving parental rights.. And, when there is no demonstrated interest, to permit attorneys (on behalf of nonconsenting parents) to exhaust every avenue of appellate review would defeat the purpose of the law, since it would compel the minor to accept a secondary role at a time in the process when the minor’s rights are greater than the parents’ rights. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787-1789 [42 Cal.Rptr.2d 200].)

A parent may demonstrate no true interest in preserving parental ties in a number of ways. Here, for example, while Simone was properly noticed of the selection and implementation hearing and could have attended, she telephoned her attorney and told him, quite simply, she was not going to appear. No explanation. She was just not going to show up. Clearly, a parent who voluntarily chooses not to appear at the selection and implementation hearing has functionally abandoned any parental interest in the minor. (Guillermo G. v. Superior Court (1995) 33 Cal.App.4th 1168, 1172