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Belinda Kirk and J.H., Her Minor Son v. Yolanda Baldovinos

June 29, 2011

BELINDA KIRK AND J.H., HER MINOR SON,
PETITIONERS,
v.
YOLANDA BALDOVINOS, ET AL., FOR THE MINOR J.H.
RESPONDENTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge United States District Court

ORDER APPOINTING GUARDIAN AD LITEM

I. BACKGROUND

The Plaintiff in this case brings claims relating to a child dependency matter. Specifically, Plaintiff claims violations of the Indian Child Welfare Act ("ICWA," 25 U.S.C. § 1901) in 20 connection with the removal of her minor son J.H. from her custody. Although none of Plaintiff's 21 claims are brought directly on behalf of her son, the issues in the case implicate J.H.'s interests. As 22 a result, the Court determined that it would be in the best interests of justice if a guardian ad litem 23 appeared to ensure that J.H.'s interests are vigorously defended in this case. In response to a 24 request from the Federal Pro Bono Project, attorneys Andrew T. Oliver, Catherine F. Munson and 25

Michael Alexander Pearl of Kilpatrick, Townsend & Stockton LLP move for joint appointment as 26 pro bono guardian ad litem for J.H. The County of Alameda filed an opposition to the motion. 27

The County states that it has no objection to the appointment, but asks that the Court order certain 28 protections for J.H.'s benefit. For the reasons set forth below, the Court GRANTS the motion for appointment of guardian ad litem and jointly appoints Mr. Oliver, Ms. Munson and Mr. Pearl as 2 guardian ad litem for J.H., with additional provisions as set forth below. 3

II. LEGAL STANDARD

An individual's capacity to sue is determined by the law of the individual's domicile.

Under California law, minors may not file suit unless a guardian conducts the proceedings. See 6 (N.D. Cal. Apr. 9, 2010)("When minors are involved, California Family Code §§ 6502 and 6601 8 provide that a minor, or an individual under the age of eighteen, may file a civil suit as long as the 9 action is conducted by a guardian.") (citing Cal. Fam. Code §§ 6502, 6601). 10

Castillo-Ramirez v. County of Sonoma, No. C-09-5938 EMC, 2010 U.S. Dist. LEXIS 35076, at *2 7

"A minor or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in 13 an action." Fed. R. Civ. P. 17(c)(2). Under California law, "[a] guardian ad litem may be 14 appointed in any case when it is deemed by the court in which the action or proceeding is 15 prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor." 16

Cal. Code of Civ. Proc. § 372. "'When there is a potential conflict between a perceived parental 17 responsibility and an obligation to assist the court in achieving a just and speedy determination of 18 the action,' the court has the right to select a guardian ad litem who is not a parent if that guardian 19 would best protect the child's interests." Williams v. Super. Ct., 54 Cal. Rptr. 3d 13, 23 (Ct. App. 20

III. DISCUSSION

Although no claims are being asserted on behalf of J.H. in this matter, the Court finds that the issues to be decided relate to J.H.'s interests such that appointment of a guardian ad litem is 24 warranted. J.H. has been removed from Plaintiff's custody. In addition, the Court finds that based 25 on the allegations in the original complaint (summarized in the Court's order of September 21, 2010), Plaintiff has at least a potential conflict of interest with J.H. For these reasons, Plaintiff 27 cannot serve as J.H.'s guardian ad litem. See Williams, 54 Cal. Rptr. at 23. The Court hereby 28 exercises its discretion to jointly appoint attorneys Andrew T. Oliver, Catherine F. Munson and 2007) (internal citation omitted). 21

Michael Alexander Pearl of Kilpatrick, Townsend & Stockton LLP as guardian ad litem for J.H. in 2 this matter. This appointment shall last until this action is finally terminated without right of 3 ...


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