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Adoption of J.W., A Minor. v. L.W

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


March 1, 2011

ADOPTION OF J.W., A MINOR. F.R., PLAINTIFF AND RESPONDENT,
v.
L.W., DEFENDANT AND APPELLANT.

(Super. Ct. No. 01AD00187)

Adoption of J.W. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sacramento)

----

L.W., the biological father of J.W., appeals from court orders terminating his parental rights and granting F.R.'s petition to adopt J.W. L.W. contends the court erred in failing to appoint him counsel, failing to order him transported to the hearing where his parental rights were terminated, failing to provide sufficient notice of the hearing where his parental rights were terminated, and granting the order of adoption while his appeal from the order terminating his parental rights was pending.

We agree the trial court committed numerous errors. Accordingly, we vacate the order granting adoption and reverse the order terminating L.W.'s parental rights.

BACKGROUND

In March 2001, J.W.'s stepfather, F.R., filed a petition to terminate L.W.'s parental rights and adopt J.W., alleging L.W. had abandoned J.W. L.W., who was incarcerated at the time, filed an opposition to the petition, which was filed with the court in July 2001. In his opposition, L.W. requested an attorney be appointed for him and asked the petition be dismissed.

In September 2001, the probation department filed a report on F.R.'s adoption petition. In that report, the department confirmed that L.W. was listed as the father on J.W.'s birth certificate, and that mother had custody of J.W. through judicial decree. The report further indicated that L.W. failed to provide for J.W., even when he was able to, and that J.W. had been living with his mother and F.R. since June 1998. The probation department acknowledged that L.W. opposed the adoption; however, the department recommended the adoption petition be granted, provided L.W.'s parental rights were terminated.

The probation department also filed a report on F.R.'s petition to free J.W. from the custody and control of L.W. L.W. was recognized as J.W.'s presumed father, and L.W.'s "rap sheet" was included. The department recommended freeing J.W. from the custody and control of L.W. and found it would be in the child's best interest to be adopted by F.R.

There is nothing further in the record until April 2005, when F.R. filed a stepparent adoption request. Then, in March 2010, J.W.'s mother contacted the probation officer and indicated that F.R. wanted to pursue the adoption request and termination of L.W.'s parental rights. The probation department thus sent a letter to L.W. at the prison where he was then incarcerated and asked for information regarding his contact with and support of J.W. The department received a signed return receipt from the prison.

Shortly thereafter, L.W. sent a letter to the probation department stating his continued opposition to the pending petition to terminate his parental rights. He claimed that J.W.'s whereabouts were withheld from him and that J.W.'s mother denied L.W. all contact and communication with the child. L.W. further claimed that he loved and cared for his son and believed the mother could have arranged communication for them but did not. L.W. also said he had not been given notice of any court hearings and again asked the court to appoint legal counsel to "represent his interests."

J.W., then 14 years old, reaffirmed his desire to be adopted by F.R. He also indicated that he wanted L.W.'s parental rights terminated. The probation department recommended F.R.'s petition be granted.

On June 4, 2010, a citation was issued on F.R.'s petition to adopt J.W. The citation directed L.W. to appear in court on August 3, 2010, and show cause why F.R.'s petition to adopt J.W. should not be granted.

On July 26, 2010, L.W. filed a "Request For an Order of Removal From State Prison," asking the court to issue an order directing the warden to transport L.W. to the court for the hearing on August 3, 2010, so that L.W. could "protect his interest."

On August 3, 2010, the petition to terminate L.W.'s parental rights was heard. L.W. was not present at the hearing. The court received into evidence the verified petition, the written investigation, and the report of the probation department. The court then found true the allegations in the petition and declared J.W. free from the custody and control of L.W.

On September 20, 2010, the trial court received a letter from L.W. In his letter, L.W. indicated he had not received a copy of the court's decision from the August 3, 2010, hearing despite his repeated requests for the same.

On September 29, 2010, L.W. filed a notice of appeal, appealing from the order terminating his parental rights, filed on August 3, 2010. The following day, the Findings and Order After Hearing from the August 3, 2010, hearing was filed, indicating J.W. had been declared free from the custody and control of L.W.

On October 4, 2010, the court confirmed that L.W.'s parental rights were terminated and executed the adoption agreement with J.W.'s consent. The court found the adoption was in J.W.'s best interests and granted the adoption petition. The adoption agreement was filed that same day.

L.W. filed a second notice of appeal on November 24, 2010. In his second notice of appeal, L.W. indicated he was appealing from the September 30, 2010, written findings and order, as well as the October 4, 2010, adoption order.

DISCUSSION

L.W. contends the orders terminating his parental rights and granting F.R.'s petition for adoption must be reversed and/or vacated because: (1) counsel was not appointed for him; (2) he was not transported to the hearing at which his parental rights were terminated; (3) he was not given sufficient notice of the hearing terminating his parental rights; and (4) the order granting F.R.'s adoption petition was issued while L.W.'s appeal of the order terminating his parental rights was pending. We agree on the first two points.

In an action to terminate a parent's rights pursuant to Family Code section 7800 et seq., "[i]f a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless that representation is knowingly and intelligently waived." (Fam. Code, § 7862.)

Presumably, F.R. petitioned to terminate L.W.'s parental rights based on Family Code section 7822, the abandonment statute, because he alleged that "[f]or more than one year last past, [L.W.] has failed to communicate with and to pay for care, support and education of [J.W.] when able to do so." Although, F.R. could have petitioned to have L.W.'s parental rights terminated pursuant to Family Code section 7825, which provides that a parent's rights can be terminated if he or she is convicted of a felony under certain circumstances.

In either event, L.W. was entitled to have an attorney appointed to represent him unless he was able to afford one on his own or he knowingly and intelligently waived his right to counsel. There is no evidence in the record that L.W. was anything other than indigent, and he twice asked for an attorney. Accordingly, the court erred in failing to appoint an attorney to represent L.W.

L.W. further contends the trial court erred in failing to issue an order for L.W.'s temporary removal from prison so that he could be present at the hearing where his parental rights were being terminated. Again, we agree.

Penal Code section 2625 requires a court to order a prisoner-parent's temporary removal and production before the court "'where the proceeding seeks to terminate the parental rights of [the] prisoner' under Welfare and Institutions Code section 366.26 or Family Code section 7800 et seq. . . . (Pen. Code, § 2625, subds. (b), (d); see In re Barry W. (1993) 21 Cal.App.4th 358, 368-369 & fn. 7.)" (In re Jesusa V. (2004) 32 Cal.4th 588, 599.)

It is undisputed that the hearing on August 3, 2010, was a proceeding to terminate L.W.'s parental rights. It is further undisputed that L.W. requested the court order him transported to the courthouse for the hearing. There is, therefore, no justification for failing to order L.W. transported for the hearing.

L.W. also argues that notice was insufficient and that the adoption order is void because the order terminating his parental rights was not yet final. Whether or not L.W. is correct, because the trial court failed to appoint counsel and failed to order L.W. transported for the hearing at which his parental rights were terminated, the order of adoption must be vacated.

DISPOSITION

The order granting J.W.'s adoption by F.R. is hereby vacated, the order terminating L.W.'s parental rights is reversed, and the matter is remanded for further proceedings consistent with this opinion.

NICHOLSON , Acting P. J.

We concur:

ROBIE , J.

DUARTE , J.

20110301

© 1992-2011 VersusLaw Inc.



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