Los Angeles County Department of Children's Services v. Donald W. , 21 Cal. App. 4th 358 ( 1993 )

EPSTEIN, Acting P, J., Concurring and Dissenting.

I fully concur in the majority opinion in this case, except for its conclusion that the appellant was not entitled to appear at the Welfare and Institutions Code section 366.26 hearing. As to that part of the opinion, I respectfully and reluctantly dissent.

It is not necessary to recite the history or full text of Penal Code section 2625, upon which the statutory right to appear is founded; these matters are set forth in the majority opinion. To me, the critical language appears in the fourth paragraph. Its command is clear and unlimited: ‘Wo proceeding may be held under Section 232 of the Civil Code or Section 366.26 of the Welfare and Institutions Code and no petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i) or (j) of Section 300” of that code shall be made, without the presence of the prisoner-parent or counsel, unless a written waiver of presence as described in the statute has been received. (Italics added.) The hearing in question was a section 366.26 hearing; the prisoner-parent was not present; and there was no statutory waiver of his presence. (In fact, he had specifically asked in writing to be present.) Unless the Legislature were to add a statement that “we really mean it,” it is difficult to see how it could have spoken in clearer terms.

The majority takes the view that the first paragraph of Penal Code section 2625 limits all that follows to Civil Code section 232 actions, dependency adjudication proceedings under Welfare and Institutions Code section 300, and Welfare and Institutions Code section 366.26 actions that seek to terminate the parental rights of the prisoner. The first paragraph requires notice to the prisoner-parent in those cases. If the Legislature intended the broad language of the fourth paragraph to be limited in this way, it chose a particularly inartful way to express it. The right-to-presence provision is stated without qualification or reference back to the initial paragraph. Further, while the first paragraph refers to all section 300 adjudicatory hearings, the fourth paragraph specifically refers to eight of the ten subdivisions of that statute, omitting two.

I said that my dissent is reluctant. That is because, in this case, it is difficult to foresee any other outcome than the one adjudicated by the trial court. But the Legislature has determined that a parent, even if incarcerated, has a right to notice and hearing before a Welfare and Institutions Code section 366.26 adjudication is made. There may well be cases where the outcome is not as clear as it seems to be in this case. But the effect of the majority opinion is to foreclose the right to hearing in all section 366.26 cases unless a termination of parental rights is sought. I cannot join it in that decision.