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In Re Nicole H., A Person Coming Under the Juvenile Court v. Joshua S. et al

November 30, 2011

IN RE NICOLE H., A PERSON COMING UNDER THE JUVENILE COURT LAW. MODOC COUNTY DEPARTMENT OF SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
JOSHUA S. ET AL., DEFENDANTS; NICOLE H., APPELLANT.



(Super. Ct. No. JP-10-012) APPEAL from a judgment of the Superior Court of Modoc County, David A. Mason, Judge. Reversed with directions.

The opinion of the court was delivered by: Murray , J.

CERTIFIED FOR PUBLICATION

Nicole H. appeals from the juvenile court's order denying her trial counsel's request for the appointment of a separate guardian ad litem (Welf. & Inst. Code, §§ 317, 326.5)*fn1 to investigate a potential tort action against the county on her behalf or, in the alternative, authorizing her dependency counsel to obtain independent counsel on a pro bono or contingency basis.*fn2 Respondent Modoc County Department of Social Services (the Department) has not filed a brief.

We hold that when a dependent minor has a potential tort claim against the county, the juvenile court must appoint a separate guardian ad litem to act on behalf of the minor by overseeing the potential tort action and otherwise protecting the minor's interests prior to the initiation of civil proceedings. The court must also appoint counsel to serve on a pro bono or contingency basis to investigate the tort action and to initiate and pursue the tort action if, after consultation with the guardian ad litem, counsel deems appropriate. The juvenile court may seek out counsel on its own, or the court may order the guardian ad litem to seek and recommend counsel to the court for appointment. The appointment of the guardian ad litem and counsel must be done expeditiously so as to not prejudice the minor's potential tort action or the county or other parties against whom the tort action may be filed.

Here, the court appointed a court-appointed special advocate (CASA), but did not appoint a guardian ad litem to oversee the litigation; nor was independent counsel appointed. We shall reverse and remand with directions that the court vacate its order denying the minor's request and issue a new order consistent with our holding in this case.

FACTUAL AND PROCEDURAL BACKGROUND

On March 1, 2010, the Department filed a section 300 petition as to Nicole H., a 13-year-old female (the minor) who resided with her father and stepmother. The petition alleged that the minor was suffering, or at risk of suffering, serious emotional damage, as evidenced by her untoward aggressive behavior toward herself and others.

At the detention hearing on March 3, 2010, the juvenile court appointed William Briggs to represent the minor as both her attorney of record and her Child Abuse Prevention and Treatment Act (CAPTA) guardian ad litem.*fn3 The court ordered that a CASA also be appointed for the minor, but the record does not show that anyone was so designated at that time. The juvenile court also ordered that the minor continue in detention, with services to be provided to the father and stepmother pending further proceedings.

On March 17, 2010, Briggs filed a written request for an order "to allow this attorney to find a guardian ad litem who would hire a tort lawyer on a contingency or pro bono basis to investigate [a] possible tort claim and file a tort action on the minor's behalf[.]" (Italics added.) According to Briggs's declaration, the minor had reported that she had been raped by another minor at the foster home where she was first detained, and law enforcement was investigating the matter. Briggs cited San Diego County Dept. of Social Services v. Superior Court (2005) 134 Cal.App.4th 761 (San Diego County) as authority for his request.

On March 23, 2010, Briggs filed an amended request for appointment of a guardian ad litem, with a memorandum of points and authorities. Briggs again relied on San Diego County. He also cited County of Los Angeles v. Superior Court (2001) 91 Cal.App.4th 1303 (County of Los Angeles) in support of his motion. Instead of asking for the authority to find a guardian ad litem, this time he requested that the juvenile court appoint a guardian ad litem. He further requested that the guardian ad litem be permitted to "hire a tort lawyer on a contingency or pro bono basis to investigate the possible tort claim." He also informed the court that "shortly before March 12, 2010," the minor reported that she had been sexually abused in foster care, and he told the court that the minor had been moved to another foster home the day she reported the incident.

Additionally, Briggs asserted that, pursuant to San Diego County, it is generally inappropriate for the minor's counsel in a juvenile dependency case to investigate related tort actions. Briggs further noted that he worked for the law firm that held the public defender contract for Modoc County, and he expressed concern that the contract might prohibit him from filing a claim against the county on behalf of a client.*fn4 Briggs stated that all other private attorneys in the county were already involved in this case and unavailable for appointment as guardian ad litem. Briggs also stated it would be inappropriate to appoint the parents for a variety of reasons.*fn5 He suggested that the juvenile court appoint an out-of-county attorney for purposes of investigating the minor's possible tort claim.

The jurisdiction report, filed March 19, 2010, recommended that the juvenile court find jurisdiction and return the minor home to her father and stepmother under a safety plan on which they had agreed and a prospective service plan they discussed with the social worker. At the jurisdictional hearing held March 25, 2010, the court sustained the allegations of the section 300 petition and made the recommended rulings. The court did not address Briggs's request for appointment of a separate guardian ad litem.

On March 29, 2010, Briggs filed a report stating that an out-of-county attorney with experience in handling cases similar to the potential tort action here had indicated he would be willing to review this case.

On April 14, 2010, the juvenile court held an uncontested dispositional hearing and ordered the minor's continued placement with her father and stepmother, along with six months of family maintenance services. Briggs voiced concern that the dispositional report did not include information about the alleged sexual abuse the minor had suffered while in foster care. He reiterated his request for authorization to refer the matter to the out-of-town counsel.

The juvenile court judge assigned to the case stated that he had to consult with the presiding judge before ruling on Briggs's request for appointment of a separate guardian ad litem. The court expressed reluctance to appoint the attorney Briggs had suggested because he "tends to be very expensive." Briggs reminded the court that the appointment would be made on a pro bono or contingency basis and that there would be ...


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