209 Cal. App. 4th 364
Cal. Ct. App.2012Background
- February 2009: Agency petitions for L.S. under §300 with Terra S. substance abuse; R.H. and Darnell are grandparent caretakers with their son Marquis in the home.
- April 2009: L.S. declared dependent; reunification for Terra; L.S. placed in foster care; placement with R.H. and Darnell considered.
- May 2009: Agency notes Darnell’s prior robbery convictions; adoption/guardianship unlikely; long-term foster care possible.
- October 2010–April 2011: Several proceedings; Darnell’s certificate of rehabilitation obtained; L.S. continued living with R.H. and Darnell; March 2011: court designates R.H. and Darnell as L.S.’s prospective adoptive parents.
- September 2011–February 2012: T.S., Marquis, and L.S. removal hearings; L.S. removal under §366.26(n) after designation; R.H. requests counsel for L.S. removal hearing; policy prevents appointed counsel for them; Darnell represents himself; L.S. removal and termination of de facto parent status occur; petitions for review denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a designated prospective adoptive parent has a due process right to counsel at the §366.26(n) removal hearing. | Darnell (and R.H.) argue for appointed counsel due to due process. | The Legislature did not grant appointed counsel to prospective adoptive parents. | No right to appointed counsel; no due process violation. |
| Whether de facto parents are entitled to counsel at the §366.26(n) hearing. | R.H. and Darnell seek counsel as de facto parents. | De facto parents have limited rights; no appointment required here. | Not required; discretionary representation adequate. |
| Whether the court abused its discretion in denying appointed counsel to R.H. and Darnell. | Denial undermines fairness given interests as prospective adoptive guardians. | Private interests low; government interest high; counsel not needed for fairness. | No abuse of discretion; fairness achieved through representation already present. |
| Whether error, if any, was harmless beyond a reasonable doubt. | Errors in lack of counsel could affect outcome. | Evidence and outcomes favor removal even with counsel present. | Harmless error; outcomes unchanged. |
| What is the status of rights of prospective adoptive parents under §366.26(n)? | Rights include notice and participation; counsel not guaranteed. | Rights are limited to notice/participation, not counsel. | Counsel not part of statutory rights for prospective adoptive parents. |
Key Cases Cited
- In re Kieshia E., 6 Cal.4th 68 (Cal. 1993) (de facto parent status limited; parental rights not fully conferred)
- In re Zacharia D., 6 Cal.4th 435 (Cal. 1993) (de facto parent status defined; parent-like rights limited)
- In re Meranda P., 56 Cal.App.4th 1143 (Cal. App. 1997) (courts consider fairness and representation in dependency)
- In re Leticia S., 92 Cal.App.4th 378 (Cal. App. 2001) (de facto/placement rights discussed)
- In re Sarah C., 8 Cal.App.4th 964 (Cal. App. 1992) (due process considerations in dependency)
- Lassiter v. Department of Social Services, 452 U.S. 18 (U.S. 1981) (due process balancing test for counsel)
- In re Kieshia E., 6 Cal.4th 68 (Cal. 1993) (see above)
- Wayne F. v. Superior Court, 145 Cal.App.4th 1331 (Cal. App. 2006) (prospective adoptive standing under §366.26(n))
- In re Patricia L., 9 Cal.App.4th 61 (Cal. App. 1992) (factors in de facto parent determination)