In re BRYCE C., a Minor. VERNON S., Petitioner and Appellant, v. JEROME C., Objector and Respondent, 12 Cal. 4th 226

Opinion ARABIAN, J. Family Code

section 7895 provides that, upon request, an appellate court “shall” appoint counsel for an indigent “appellant” appealing “a judgment freeing a child who is a dependent child of the juvenile court from parental custody and control.” The question here is whether an appellate court is required to appoint counsel for a respondent when the trial court refused to free the child from parental custody and control and the child was not a juvenile court dependent. We conclude that Family Code

section 7895 requires appellate courts to appoint counsel only for parents appealing a judgment freeing a child from their custody and control. Thus, respondent father in this case was not entitled, as of right, to appointed counsel. We also conclude, however, that appellate courts have discretion to appoint counsel for a parent in any other appeal in which the parent’s custody and control of a child is at stake, and should exercise that discretion whenever the appearance of counsel may reasonably affect whether parental rights are terminated.

Because the Court of Appeal here did not exercise that discretion, we remand the matter for that purpose. I. Procedural History The stepfather of a minor petitioned the superior court to declare the child free from the father’s custody and control, and alleged that the father had abandoned the child. After taking evidence, the court found no abandonment, and denied the petition. The stepfather appealed.

Represented by retained counsel, he filed an opening brief arguing that the finding of no abandonment was not supported by substantial evidence, and the court erred by failing to consider the best interests of the child. The respondent father asked the Court of Appeal to appoint counsel for him. The court denied the request, finding that “respondent is not entitled to appointment of appellate counsel under Family Code

section 7895 (former Civ. Code, § 237.7) in that the child was not declared free from parental custody and control, and the child was not a dependent child of the juvenile court.” We granted the father’s petition to review this order, and appointed counsel to represent him in this court. The stepfather has declined to brief the question in this court, but we requested and received a letter brief from the Attorney General, who argues that appointment of counsel in a case such as this is discretionary. II. Discussion A. Background Family Code

section 7800 et seq. establishes a proceeding “for the purpose of having a minor child declared free from the custody and control of either or both parents.” (Fam. Code, § 7802.) These proceedings are immensely important to the parent because a “declaration of freedom from parental custody and control pursuant to this part terminates all parental rights and responsibilities with regard to the child.” (Fam.

Code, § 7803.) In In re Jacqueline H. (1978) 21 Cal.3d 170, 175, 177 [145 Cal.Rptr. 548, 577 P.2d 683] (Jacqueline H.) we interpreted a predecessor statutory scheme that did not expressly “provide for the appointment of [appellate] counsel” for indigent parents, and concluded “that the Legislature could not have intended to withhold from an indigent parent the right to an effective appeal, and, therefore, the services of appellate counsel in [former Civil Code]

section 232 proceedings.” (Italics in original.) Accordingly, we construed the statutes as impliedly requiring a “reviewing court to appoint counsel for any indigent parent appealing from an order terminating parental rights . . . .” (Ibid.) A few years after Jacqueline H., supra, 21 Cal.3d 170, the Legislature enacted former Civil Code

section 237.7 to expressly provide for appellate counsel. (Stats. 1984, ch. 605, § 1, p. 2326.) The substance of that provision is now found in Family Code

section 7895 (section 7895), which provides as pertinent: “(

a) Upon appeal from a judgment freeing a child who is a dependent child of the juvenile court from parental custody and control, the appellate court shall appoint counsel for the appellant as provided by this section. “(

b) Upon motion by the appellant and a finding that the appellant is unable to afford counsel, the appellate court shall appoint counsel for the indigent appellant, and appellant’s counsel shall be provided a free copy of the reporter’s and clerk’s transcript. . . .” On its face, this statute appears to contain two prerequisites to the parent’s right to appointed appellate counsel: (1) the parent must be the “appellant” from a judgment “freeing a child . . . from parental custody and control”; and (2) the child must be a “dependent child of the juvenile court.” Neither is met here: father is the respondent after the court refused to declare the child free from his custody and control, and the child was not a juvenile court dependent.

The Court of Appeal relied on both of these circumstances to deny father appointed counsel. Two recent Court of Appeal decisions construing this statute have reached conflicting conclusions. In both cases, the parent was the appellant but the child was not a juvenile court dependent. The first decision interpreted the statute strictly, and found no right to counsel. (In re Curtis S., supra, 25 Cal.App.4th 687.) The second found there was a right to counsel. (Appellate Defenders, Inc. v.

Cheri S. (1995) 35 Cal.App.4th 1819 [42 Cal.Rptr.2d 195] (Appellate Defenders).) Neither confronted the question whether counsel must be appointed for a respondent parent whose rights were not terminated. As this latter question is dispositive here, we turn to it. B. Parent as Respondent The father argues that he is entitled to counsel under

section 7895 even though he is a respondent and the trial court refused to declare the child free from his custody and control. We disagree. The statute specifically refers to a “judgment freeing a child . . . from parental custody and control,” and uses the word “appellant” to describe the person entitled to counsel no fewer than four times. Generally, the expression of some things in a statute implies the exclusion of others not expressed. (Gikas v. Zolin (1993) 6 Cal.4th 841, 852 [25 Cal.Rptr.2d 500, 863 P.2d 745].) Here, the statute impliedly excludes the right to counsel to a respondent.

The court in Appellate Defenders, supra, 35 Cal.App.4th 1819, examined the legislative history of former Civil Code

section 237.7 and found “no intent by the Legislature to abrogate or restrict the right to appellate counsel established by Jacqueline H. Rather, the Senate and Assembly Committees on the Judiciary analyzed the legislation as codifying Jacqueline H., requiring reviewing courts to appoint counsel for any indigent parent whose parental rights were terminated. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1912 (1983-1984 Reg. Sess.) as amended Mar. 19,1984, at pp. 1-2 (Assembly Analysis); Legislative Analyst, Analysis of Sen. Bill No. 1912 (1983-1984 Reg.

Sess.) as amended June 14, 1984, at p. 2 (Senate Analysis).) “The stated need for codification was that “confusion and delays” result when rights are extended by the courts rather than by statute.’ (Sen. Analysis, supra, at p. 3.) Moreover, the Assembly analysis explained support for the legislation as follows: ‘[T]he fundamental nature of parental rights mandates protection by the state of familial rights throughout all phases of termination proceedings. Such protection is critical where indigency might preclude any appeal, or any effective appeal, by an impoverished parent . . . .’ (Assem.

Analysis, supra, at p. 3.)” (Appellate Defenders, supra, 35 Cal.App.4th at pp. 1824-1825, first italics in original, second italics added.) The court found “no situation where an indigent person is entitled to appointed trial counsel and denied counsel on appeal from an adverse judgment. ...

If skilled counsel is needed to protect the indigent parent’s rights at trial and preserve issues for appeal, it follows skilled appellate counsel should examine that record for claims of error.” (Appellate Defenders, supra, 35 Cal.App.4th at p. 1826.) Father has asked us to judicially notice legislative materials concerning the bill that led to the enactment of what is today

section 7895, including those considered in Appellate Defenders, supra, 35 Cal.App.4th 1819. We grant the motion. (Evid. Code, §§ 452, subds. (c) & (h), 459, subd. (a); Ford & Vlahos v. ITT Commercial Finance Corp. (1994) 8 Cal.4th 1220, 1226 [36 Cal.Rptr.2d 464, 885 P.2d 877].) As the court in Appellate Defenders, supra, 35 Cal.App.4th 1819, found, the materials, including analyses of both the Senate and Assembly Committees on the Judiciary, show an intent to codify the rule of Jacqueline H., supra, 21 Cal.3d 170. They do not, however, evidence an intent to expand that rule.

The legislative language and history both demonstrate an intent to require counsel for appellants, but not necessarily for respondents. Substantial reasons explain and justify a statute granting counsel to all appellants whose parental rights have been terminated but not to all respondents whose rights have not been terminated.

An appellant whose rights have been terminated has the burden to perfect the appeal, and to identify and argue points of error to try to overturn a presumptively valid judgment. (See, e.g., In re Brittany H. (1988) 198 Cal.App.3d 533, 549 [243 Cal.Rptr. 763] [stressing the presumptions in favor of factual findings by the trial court].) The rationale of Jacqueline H., supra, 21 Cal.3d at page 177, was that indigent parents should have the “right to an effective appeal,” not just any appeal, which requires an attorney. (Italics in original.) The quoted language was also quoted in the bill analyses of both the Senate and Assembly Committees on the Judiciary.

Although counsel is certainly useful, and sometimes vital, to a respondent, this argument has less force when the parent is defending a favorable judgment, and the presumptions favor the respondent. The differing positions of appellant and respondent are illustrated in the Rules of Court. If an appellant fails to file a brief, the appeal may be dismissed entirely. (Cal. Rules of Court, rule 17(a).) By contrast, if the respondent fails to file a brief, the judgment is not automatically reversed.

Rather, the reviewing court “may accept as true the statement of facts in the appellant’s opening brief and, unless the appellant requests oral argument, may submit the case for decision on the record and on the appellant’s opening brief.” (Cal. Rules of Court, rule 17(b).) Although some courts have treated the failure to file a respondent’s brief as in effect a consent to a reversal, it has been said that the “better rule ... is to examine the record on the basis of appellant’s brief and to reverse only if prejudicial error is found.” (Votaw Precision Tool Co. v.

Air Canada (1976) 60 Cal.App.3d 52, 55 [131 Cal.Rptr. 335]; accord, Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 80, fn. 2 [2 Cal.Rptr.2d 845].) Certainly, if the respondent in an appeal from a judgment refusing to terminate parental rights is unrepresented, the appellate court should reverse only if prejudicial error is found. Because of the general presumptions favoring the judgment, many can and should be affirmed even absent a brief or other appearance by the respondent. (We, of course, express no opinion regarding the merits of this appeal.) In those cases, at least, counsel might be unnecessary.

For these reasons, we conclude that when the Legislature decreed that counsel must be appointed for appellants from a judgment freeing the child from parental custody and control, it impliedly withheld the absolute right to counsel to respondents whose rights have not been terminated.

Because father, as a respondent, is not entitled to counsel as of right, and because, as discussed below, appellate courts have discretion to appoint counsel in any appeal in which parental rights are at stake, we need not decide the additional question whether the child must be a dependent child of the court for counsel to be required. That issue can await a case, should one arise, in which the appellate court refuses, in its discretion, to appoint counsel for an appellant parent. C.

Discretion to Appoint Counsel The fact that the Legislature has not required appointment of counsel for indigent respondents in termination cases does not mean that appellate courts do not have discretion to appoint counsel. As the Attorney General argues, they do have discretion. It is “plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody, and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ [Citation.]. . . .

A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 649-650, 101 S.Ct. 2153].) The reversal of a judgment refusing to terminate parental rights can potentially lead to the loss of such rights, and may itself directly cause the loss. (E.g., In re Emily L. (1989) 212 Cal.App.3d 734, 744 [260 Cal.Rptr. 810] [directing the superior court to free the minor from the custody and control of the respondent parent].) We do not read

section 7895 as precluding the appointment of counsel in those situations, only as not requiring it in all cases. In Jacqueline H., supra, 21 Cal.3d at page 177, footnote 6, we found that the appellate court has authority to appoint appellate counsel for a parent when parental rights are at stake. Nothing in

section 7895 eliminates this authority. Indeed, constitutional considerations may mandate the appointment of counsel at least on a case-by-case basis. The court in Lassiter v. Department of Social Services, supra, 452 U.S. at page 32 [68 L.Ed.2d at page 652], held that “the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings [is] to be answered in the first instance by the trial court, subject, of course, to appellate review.” We thus conclude that appellate courts have discretion to appoint counsel for responding parents upon request.

Because of the fundamental importance to the parent and society of an accurate determination whether to terminate parental rights, counsel should be appointed whenever the appearance of counsel may reasonably affect the ultimate decision. Factors to consider are the nature of the ruling below, the complexity of the issues raised, whether the appellate court contemplates a decision adverse to the parent, and the consequences of any potential adverse ruling. Normally an appellate court should appoint counsel for the respondent whenever the issues are complex or it contemplates reversing the judgment.

There may conceivably be cases where the ultimate question is left for future determination in the trial court (at which the parent could have counsel), and where the error is so clear and the law so well settled, that appellate counsel properly could be denied despite a reversal. We need not decide now, in a vacuum, whether an appellate court may ever deny counsel to a respondent parent and then reverse the judgment.

But counsel should, at least, be appointed whenever the appellate court contemplates rendering a decision, like that in In re Emily L., supra, 212 Cal.App.3d 734, that itself terminates parental rights. Because of the dynamic nature of the appellate process, an initial determination that counsel is not necessary is subject to change at any time. Thus, any order denying counsel is necessarily without prejudice to reassessment during the appeal. A request for counsel should always be deemed continuing.

It should not be expected, or even desired, that unrepresented respondents who have requested counsel will renew the request. If, after initially denying counsel, the court finds that counsel becomes warranted, it may, and should, make the appointment even in the absence of a renewed request. Some appellate courts might find it more efficient, on balance, to exercise their discretion by granting counsel to all responding parents in termination cases, rather than on a case-by-case basis. We do not require or prohibit either practice. That is up to the courts themselves in the management of their dockets.

We merely hold that appellate courts are not required to appoint counsel for all responding parents, but may, and sometimes must, appoint counsel in specific cases. Father argues also that the state Constitution requires appointment of counsel. We need not determine the exact parameters of the constitutional right to counsel at this time, for we are confident that the appointment of counsel whenever needed under these standards is sufficient.

Although the Constitution might prohibit terminating parental rights of an indigent who has requested and been denied counsel, it certainly does not require appointment of counsel in all cases. For example, a respondent who prevails on appeal despite the failure to appoint counsel can hardly have suffered a constitutional deprivation. D. Application to This Case Father does not have an absolute right to counsel, but the Court of Appeal has discretion to appoint counsel for him. The order in this case suggests that the court denied counsel automatically, and not in the exercise of its discretion.

Whether it should appoint counsel under the standards stated in this opinion is for that court to determine in the first instance. We therefore remand the matter to that court. III. Disposition The order of the Court of Appeal denying counsel is reversed and the matter is remanded for that court to exercise its discretion and determine whether to appoint counsel under the standards stated in this opinion. Lucas, C. J., Mosk, J., Baxter, J., George, J., and Werdegar, J., concurred.

Effective January 1,1994, the Legislature created the new Family Code, largely consisting of statutory provisions transferred from other codes. (See Adoption of Michael H. (1995) 10 Cal.4th 1043, 1049, fn. 1 [43 Cal.Rptr.2d 445, 898 P.2d 891].) The sections of the Family Code discussed here were previously in the Civil Code. (See In re Curtis S. (1994) 25 Cal.App.4th 687, 690, fn. 1 [30 Cal.Rptr.2d 739].) Generally, we will cite only to the current Family Code sections unless there is a need to cite the predecessor statute.