§3.05 Right to Counsel

[1] For the Child
[2] For the Parents or Guardian
[3] Incarcerated Parent
[4] Continued Representation

[1] For the Child

Generally you must appoint an attorney for a child who is the subject of a dependency petition. [WIC §317(c); CRC 5.534(h)(1)(A).] The attorney may be a district attorney, public defender, or other member of the bar, provided he or she does not represent another party or county agency whose interest conflicts with the child’s. [WIC §317(c).]

You may decide not to appoint counsel only if you find that the child will not benefit from the appointment. To reach this conclusion, you must find that the child [CRC 5.660(b)(1), (2)]:

• Understands the nature of the proceedings;
• Can communicate with the court, counsel, parties, social workers, and other professionals involved in the case, and can advocate effectively for himself or herself; and
• Will not benefit from having counsel appointed under the circumstances.

These factors ensure that you appoint counsel for the child in almost every case.

CRC 5.660(c) requires separate representation of siblings “if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case—not just the potential for conflict that inheres in all multisibling dependency cases—present a reasonable likelihood an actual conflict will arise.” [In re Zamer G. (2007) 153 CA4th 1253, 1264 (disqualification of counsel warranted when counsel represented four siblings in a dependency proceeding of a custodial father, two of whom claim to have been abused by the father of the other two, when these other two were preverbal and showed no signs of physical abuse).]

If you find that the child will not benefit from counsel, you must appoint a CASA volunteer or a CAPTA guardian ad litem. [CRC 5.660(b)(3); see Part 1, §3.06.]

[2] For the Parents or Guardian

A parent or guardian has the right to be represented by an attorney. [WIC §317(a); CRC 5.534(g).] You must appoint counsel if [WIC §317(b); CRC 5.534(h)(1)(B)]:

• The child was removed from the home or the petitioning agency is recommending removal; and
• The parent or guardian is indigent.

You must also appoint an attorney in Indian child custody cases, for a parent or Indian custodian who desires but cannot afford counsel. [WIC §317(a)(2).]

A parent or guardian may waive the right to counsel [WIC §§317(b), 366.26(f)(2); CRC 5.534(h)(1)(B)], but you should warn them of the disadvantages of self-representation. [In re Brian R. (1991) 2 CA4th 904, 921–922.] You should appoint separate counsel for each parent or for a parent and guardian if there is a reasonable likelihood of conflict.

You are not obligated to appoint counsel for an indigent parent who has chosen not to appear and has made no request for counsel [In re Ebony W. (1996) 47 CA4th 1643, 1645], nor do you have authority to appoint counsel for a parent whose parental rights have been terminated [In re Jacob E. (2004) 121 CA4th 909, 924].

[3] Incarcerated Parent

It may be appropriate to appoint counsel for an incarcerated parent. An incarcerated parent must be noticed and has the right to be present at [PC §2625(b)]:

• Any court proceeding that seeks to adjudicate the prisoner’s child a dependent of the court; and
• At a .26 hearing at which the recommendation is to terminate parental rights.

For a form of order for a prisoner to appear and a prisoner’s waiver of appearance, see form JV-450. Because the detention hearing must be heard within a very short time, unless the parent is incarcerated in your county’s jail, it is unlikely that he or she can be transported in time for the detention hearing.

[4] Continued Representation

The appointed counsel must represent the client in all juvenile court proceedings. [See WIC §317(d).] Counsel must also represent the client in any appellate court writ proceedings. [Rayna R. v Superior Court (1993) 20 CA4th 1398, 1404–1405.]