Los Angeles County Department of Adoptions v. Robert E. , 21 Cal. 3d 349 ( 1978 )

Opinion

CLARK, J.

Robert E. appeals from judgment declaring that custody and control of his minor son, Richard, should be removed from the minor’s parents and placed in plaintiff Los Angeles County Department of Adoptions (County). (See Civ. Code, § 232, subd. (a)(4).)¹ We affirm the judgment.

County seeks to free Richard from custody and control of his parents on grounds (1) the minor, seven and one-half years of age when the petition was filed, had been almost since birth provided for by public agencies, without support or communication from parents who intended to abandon him, and (2) the father had been convicted of a felony which not only made him unfit to have custody of the minor but also required his confinement for such length of time as to deprive the minor of a normal home life.² Only the father (Robert) seeks relief from the judgment based as to him on the finding that “no reasonable possibility” existed “that the father would be released from prison soon enough to embark upon a meaningful parental relationship.” (Civ. Code, § 232, subd. (a)(4).)

The mother, whose whereabouts are unknown but who was served by publication, has not appeared in these proceedings. The court found that she intended to abandon the minor (Civ. Code, § 232, subd. (a)(1)), and granted the petition as to her also.

Robert was bom in Missouri in 1939. He has, in addition to Richard, other sons aged 16, 15 and 13 years at the time the petition was filed. They reside in foster homes. Speaking of his relationship with his children he states: “I happen to be that ‘one in a million type of natural father’ that I love my sons to the extent that I will effect any means or actions at my disposal for the betterment of their welfare regardless of the consequences to myself personally.”

Robert has not chosen the most laudable means to better the welfare of his children. In June 1967 he was convicted of armed bank robbery and sentenced to 20 years confinement in a federal prison. While on parole in 1968, he was arrested and convicted of second degree burglary. In August 1974, again on parole, he was arrested for bank robbery, and in November 1974 he was sentenced in federal court upon multiple convictions to a term of at least 25 years.

Richard was born in September 1967 while appellant was in prison following first conviction. Since placed in a foster home when three years old, Richard has never seen his mother or father with the exception of three visits by Robert in the spring of 1974. Neither parent has contributed to his support. Robert, who was represented by appointed counsel at hearing on the petition, contends the judgment must be reversed because the court failed to also appoint counsel for Richard, citing In re Dunlap (1976) 62 Cal.App.3d 428 [133 Cal.Rptr. 310].

Dunlap involved a custody and control proceeding for the 14th child of Juanita Dunlap, a 43-year-old widow. At the time of birth Juanita refused to reveal the name of the baby’s father and voluntarily relinquished the . child to a foster home because she had then “about nine” children living at home, was under a strain, and feared the baby would not be accepted by the other children. When the child was three years of age Juanita sought to remove her from the foster parents. They petitioned pursuant to Civil Code section 232 to free the child from Juanita’s care and custody. A probation report (see Civ. Code, § 233) made a strong recommendation in favor of the foster parents as being in the best interest of the child. For unexplained reasons the report was not received in evidence.

The Dunlap trial court found on conflicting evidence Juanita had never intended to abandon the baby and ordered she be delivered to Juanita “forthwith.” In reversing, the Court of Appeal expressed concern that neither the petitioner nor a parent had advocated a position necessarily based in any part on the minor’s best interests. Noting the probation report had not been received in evidence, the court concluded the minor’s interests had not been adequately protected, holding there to be reversible error in the failure to appoint independent counsel for the minor pursuant to Civil Code section 237.5.

Civil Code section 237.5 provides procedures for hearing on a petition to free a child from parental custody and control. It states the judge “shall” read the petition to the child’s parents, if they are present; the judge “shall” explain any term or allegation contained in the petition, the nature of the proceeding, its procedures, and possible consequences, upon request by the minor or either parent; the judge “shall” ascertain whether the minor and parents have been advised of the right to be represented by counsel, and advise them of such if they were unaware; the judge “shall” appoint counsel to represent each parent who appears and is unable to afford counsel; and the judge “may” appoint an attorney to represent the minor whether or not he is able to afford counsel.

When the Legislature has, as here, used both “shall” and “may” in close proximity in a particular context, we may fairly infer the Legislature intended mandatory and discretionary meanings, respectively. The ordinary import of “may” is a grant of discretion. (Housing Authority v. Superior Court (1941) 18 Cal.2d 336, 337 [115 P.2d 468].) An exercise of such discretion will not be disturbed on review unless abused. (6 Witkin, Cal. Procedure (2d ed. 1971) p. 4234.) Even failure to state reasons for a discretionary decision does not constitute, by itself, abuse of discretion. (People v. Edwards (1976) 18 Cal.3d 796, 799 [135 Cal.Rptr. 411, 557 P.2d 995].) Further, to be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice. (Brown v. Newby (1940) 39 Cal.App.2d 615, 618 [103 P.2d 1018].)

A proceeding to free a child from parental custody and control is essentially accusatory in nature, directed to challenges against the parent—not against the child. (In re Rodriguez (1973) 34 Cal.App.3d 510, 514 [110 Cal.Rptr. 56].) The petitioner must establish that a parent is guilty of abandoning, cruelly treating or neglecting the child; or is addicted, morally depraved; or is a convicted felon, is mentally deficient, or is otherwise incapable of caring for the child. (Civ. Code, § 232.) Thus, the issue at a hearing is whether a parent is fit to raise the child. To that end are directed all the arguments of opposing parties, parents claiming they are fit and petitioners claiming otherwise, and with each side generally contending it is protecting the best interests of the child. It is thus likely that in a particular case the court will be fully advised of matters affecting the minor’s best interests, and little assistance may be expected from independent counsel for the minor in furtherance of his client’s or the court’s interests. However, when the court finds a child has separate interests not protected in the contest between parents and a petitioner, the court must exercise its discretion by appointing separate counsel.

In confronting the particular circumstances in Dunlap the court concluded the minor’s interests were prejudiced because she had not been represented. It was recognized that while the court possesses broad discretion in the matter (In re Dunlap, supra, 62 Cal.App.3d 428, 438), appointment of counsel is nevertheless required in the absence of an affirmative showing the minor’s interests would otherwise be protected. (Id.)

Thus, in absence of a showing on the issue of the need for independent counsel for a minor, failure to appoint constitutes error. However, this is not to say a court must always exercise its discretion in favor of appointing counsel. The court possesses broad discretion in determining need for counsel, and exercise of discretion will not be disturbed on appeal except for manifest abuse. But here no showing on the issue of need for counsel was made, and thus no basis upon which the court could exercise its discretion not to appoint counsel existed. Failure to appoint counsel in such circumstances is error. (In re Dunlap, supra, 62 Cal.App.3d 428, 438.) The rule we adopt of course requires counsel be appointed at the commencement of proceedings absent an immediate showing upon which the court can exercise its discretion against making an appointment.

Failure to appoint counsel in the context of a freedom from parental custody and control proceeding is dissimilar to denial of the fundamental right to counsel where one is charged with crime or juvenile misconduct. (See In re Robinson (1970) 8 Cal.App.3d 783, 786 [87 Cal.Rptr. 678].) None of the personal deprivations flowing from denial of counsel in juvenile court proceedings are present here. (See In re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068]; In re Gault (1967) 387 U.S. 1 [18 L.Ed.2d 527, 87 S.Ct. 1428].) Accordingly, failure to appoint counsel for a minor in a freedom from parental custody and control proceeding does not require reversal of the judgment in the absence of miscarriage of justice. (See Brown v. Newby, supra, 39 Cal.App.2d 615, 618.)

There is nothing in the record of the instant proceeding suggesting the minor was prejudiced because he was not represented by independent counsel. The court concluded on substantial evidence in accordance with the probation report that awarding custody to either parent would be detrimental to Richard. On the other hand, Robert was afforded full opportunity to demonstrate that his continuing custody of Richard would be in Richard’s best interests. He testified, conceding his criminal violations but expressing his love and devotion for Richard. Each of his other sons—all living in foster homes for several years—also testified in a manner very favorable to Robert.³

The record discloses and Robert suggests nothing which independent counsel for the minor might have done to better protect Richard’s interests. The court made its judgment with full knowledge of family relationships affecting Robert and Richard, noting particularly the very favorable manner in which Robert’s other children had developed notwithstanding his long absence from the family. It thus appears the court had before it all factual matters which may have persuaded it that Richard’s interests would be best served by not depriving Robert of custody.⁴ In such circumstances, no miscarriage of justice resulted from the court’s failure to exercise its discretion to appoint counsel for Richard.⁵

Robert further complains the trial court failed to make findings required by Civil Code section 4600.⁶ (See In re B. G. (1974) 11 Cal.3d 679 [114 Cal.Rptr. 444, 523 P.2d 244].) Robert did not request the court make findings of fact (see Code Civ. Proc., § 632), and the court made no express finding or conclusion. However, after all evidence had been received the court stated: “The court does not have to conclude that [Robert] is going to be in jail for thirty-five years or even twenty-five years. [The aggregate length of multiple federal terms imposed on Robert is in dispute.] The only thing that the court has got to consider is whether there is any reasonable probability that he will be released at some time soon enough to embark upon a meaningful parental position in respect to Richard, and that probability is totally nonexistent, it really is.” (Italics added.) While the court’s statement does not comply with the literal requirements of Civil Code section 4600 (see In re B. G., supra, 11 Cal.3d 679, 698-699), in rendering its judgment the court further recited: “... the court having found that an award of custody of [Richard E.], minor, to said citees, or either of them, would be detrimental to said minor and that an award of custody to a non-parent is required to serve the best interests and welfare of said minor .. ..”

We deem the court’s statements to constitute a finding that, by reason of Robert’s incarceration, he is unfit to provide future custody and control of Richard, and Richard would be deprived of a normal home for a period of years, within the meaning of Civil Code section 232, subdivision (a)(4). The court’s statements otherwise constitute compliance with Civil Code section 4600. That section does not specify any particular form for findings. (See Hopkins v. Warner (1895) 109 Cal. 133, 139 [41 P. 868]; Guardianship of Sharp (1940) 41 Cal.App.2d 79, 84 [106 P.2d 244].)

The judgment is affirmed.

Mosk, J., Richardson, J., and Manuel, J., concurred.

1 The record on appeal fails to disclose that judgment was entered herein, but examination of the trial court record pursuant to California Rules of Court, rule 12(a), demonstrates judgment was entered on 18 September 1975. Robert E. has a right to appeal from that judgment. (Code Civ. Proc., §§ 902, 904.1.)

2 At the time the petition was filed, Civil Code section 232, subdivision (a), read in pertinent part: “An action may be brought for the purpose of having any person under the age of 18 years declared free from the custody and control of either or both of his parents when such person comes within any of the following descriptions: ... (4) Whose parent [is] convicted of a felony, if the felony of which such parent [was] convicted is of such nature as to prove the unfitness of such parent... to have future custody and control of the child, or if any term of sentence of such parent... is of such length that the child will be deprived of a normal home for a period of years.” (Note: The underscored portion of the statute was deleted by 1976 amendment (Stats. 1976, ch. 940, § 2).)

3 The trial court commented on Robert’s sons as follows: “I don’t think I have ever experienced three minors of age thirteen, fifteen and sixteen that were such outstanding witnesses, such intelligent persons. Not only did they indicate their deep devotion to their father, but they are very bright... I am sorry to say that half of the attorneys that come into this courtroom cannot communicate as well as these three children can.”

4 We do not imply that the favorable impression created by Robert’s older children was necessarily a factor to be weighed in favor of continuing Robert’s custody of Richard. After all, the older children were all in large part the products of the foster home program.

5 In Dunlap, supra, 62 Cal.App.3d 428, the court reversed judgment without expressly considering the question of a miscarriage of justice. To the extent that Dunlap suggests a per se rule that reversal automatically follows from failure of the trial court to exercise its discretion, it is disapproved. However, there are circumstances in that case, primarily the failure to place in evidence the probation report, suggesting failure to appoint independent counsel for the minor may have resulted in a miscarriage of justice.

6 Section 4600 provides in pertinent part: “In any proceeding where there is at issue the custody of a minor child . . . . [1] Before the court makes any order awarding custody to a person or persons other than a parent... it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child. ...”