Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super.Ct. No. SASS02293 Michael A. Smith and Arthur A. Harrison, Judges.
Nicole Williams, under appointment by the Court of Appeal, for Objector and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Petitioner and Respondent.
Susan Bookout, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, J.
Objector and Appellant Leonard G., Sr., (Leonard) appeals from the juvenile court’s termination of his parental rights in a stepparent adoption proceeding as to his almost 13-year-old son, Leonard G., Jr. (minor). Leonard contends (1) he was denied due process when the court failed to appoint counsel to represent him prior to terminating his parental rights; (2) the court erred when it failed to consider whether the minor’s interests required appointment of counsel; (3) Leonard’s rights to due process were violated when the court terminated parental rights pursuant to Family Code section 7664 without first affording him meaningful notice and an opportunity to be heard; and (4) the court erred in concluding that he was only a natural father and, thus, his consent was not necessary for the adoption to take place.
All future statutory references are to the Family Code unless otherwise stated.
Counsel for petitioner and respondent Patrick L. (Patrick) and counsel for minor concede the juvenile court committed reversible error and request this court provide relief to Leonard as expeditiously as possible. After thoroughly examining the record on appeal, and in light of the concessions, we agree with the parties that the juvenile court committed reversible error, and we will therefore reverse the matter.
I
FACTUAL AND PROCEDURAL BACKGROUND
Leonard and minor’s mother, Rochelle L. (Rochelle), married sometime before or after minor’s birth. They divorced in June 1996, and Rochelle was awarded custody of minor. In June 2004, Rochelle married Patrick.
A report filed on June 20, 2007, by the San Bernardino County Department of Children’s Services (DCS) noted that Leonard and Rochelle were not married at the time of minor’s birth but were later married. Subsequently, a report filed on October 5, 2007, prepared by the same social worker stated that the parents were married at the time of minor’s birth.
On March 2, 2007, Patrick filed an adoption request seeking to terminate Leonard’s parental rights, noting that Leonard had “not contacted his . . . child in one year or more.”
On July 11, 2007, Patrick filed a petition for freedom from parental custody and control pursuant to section 7800 et seq. alleging that Leonard had left minor in the care of his mother and Patrick without communication with the intent to abandon since “March 2007.” The petition alleged that the last contact Leonard had had with minor was in March 2007 by telephone.
On July 13, 2007, a form entitled “Citation — Freedom From Parental Custody and Control” and a copy of the petition was served on Leonard. The notice indicated that a hearing was scheduled for August 8, 2007. It also noted that if the court found “that the interest of the minor(s) requires his or her protection, the Court shall appoint counsel to represent the minor(s).” Additionally, the notice stated that if Leonard appeared “without counsel and [he was] unable to afford counsel,” the court would appoint counsel upon “request [for] appointed counsel.”
DCS reported that Patrick loved minor and wanted him to have the same rights as Patrick’s own child. Minor was reportedly “happy about the adoption” and was informed of his rights to attend the section 7822 hearing. The social worker opined that terminating parental rights would be in minor’s best interests insofar as Leonard had paid “little child support” and had not seen minor “in some years.”
By the time of the social worker’s June 20, 2007, report, Leonard had not contacted DCS and, thus, the report did not include a statement from him. Apparently, Leonard was personally served with a copy of the section 7822 petition on July 13, 2007 -- after the social worker prepared the report with recommendations.
On August 8, 2007, the juvenile court conducted the hearing in chambers. Leonard stated that he was not in agreement with the petition to declare minor free from custody and control. The court then stated, “Well, in that case, we’re going to need to set it for a contested hearing on the matter, where you would have to come in and present the evidence to support the allegations in the petition. [¶] And then, of course, if you had any evidence that you wanted to present to oppose the allegations in the petition, you would have to present that. Okay?” Leonard replied “Okay.”
The hearing on the section 7822 petition was held on September 13, 2007. Present in the courtroom were Rochelle, Patrick, Leonard, minor, the paternal grandmother, and the maternal grandfather. After the court took everyone’s oath in unison and after determining that there was no issue concerning whether Leonard was minor’s natural father, the court heard statements from all the parties and witnesses involved. Leonard and the paternal grandmother claimed that they had been trying to see minor for the last several years but were thwarted by Rochelle and that minor had been “coached” into saying that he did not remember his father and wanted to be adopted by Patrick. Following the statements of the parties and witnesses, the court, specifically referring to section 7664, stated that its role was to “determine merely if it’s in the best interests of the child that the father retain his paternal rights or that an adoption of the child be allowed to proceed.” The court subsequently found that it was in minor’s best interests to allow the adoption to go forward. The court stated that it was also granting the petition under section 7822, subdivision (b), finding that there had been “limited contact . . . over a lengthy period of time, support payments have not been made, and there has been minimal visitation among those contacts . . . .”
The court thereafter signed an order for freedom from parental custody and control. This appeal followed.
II
DISCUSSION
Leonard makes several claims relating to the denial of his due process right during these proceedings. In a letter brief, counsel for Patrick appropriately concedes the court committed reversible error. Specifically, Patrick concedes that Leonard was denied due process when the court failed to appoint counsel to represent Leonard “in the proceedings where termination of his parental rights was at stake and when the court proceeded under Family Code section 7664 without notice.” Patrick also concedes that the court erred when it failed to consider whether appointment of counsel for minor was appropriate. Minor’s counsel joins in Patrick’s concession and requests “reversal of what was a highly irregular, and hopefully anomalous hearing by the trial court.” We also agree with the parties that the juvenile court committed reversible error.
The indigent parent has an express right to appointed trial counsel in a termination of parental rights proceeding whether initiated by the state or others. (§§ 7862, 7895; see also In re Jay R. (1983) 150 Cal.App.3d 251, 260 [“due process requires appointment of counsel for indigent noncustodial parents accused of neglect in stepparent adoption proceedings, if indigency is demonstrated and appointment of counsel is requested”]; Appellate Defenders, Inc. v. Cheri S. (1995) 35 Cal.App.4th 1819, 1825 [right to appointed appellate counsel]; In re Bryce C. (1995) 12 Cal.4th 226, 233 [same].)
Section 7862 provides, “If 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.”
“The effect of terminating parental rights for adoption, whether initiated by the state or others, has the same drastic result for the parent. It is the same effect in the stepparent adoption context, where the custodial parent and current spouse seek to strip a parent of his or her right to withhold consent to adoption. [Citation.]” (Appellate Defenders, Inc. v. Cheri S., supra, 35 Cal.App.4th at p. 1826, fn. omitted.)
In addition, we note that a parent is entitled to notice under section 7664. When a mother wants to place her child for adoption, the procedure by which the father’s parental rights may be terminated is governed by sections 7660-7670. Efforts must be made to contact the father and provide both notice and an opportunity to be heard. (§§ 7663, 7664, 7666.) Within 30 days of receiving notice, the father must bring an action to establish the existence of a father-child relationship. (§§ 7630, 7662, subd. (b), 7664, subd. (a).) Here, it is undisputed that Leonard did not receive notice under section 7664.
III
DISPOSITION
The judgment is reversed.
Pursuant to the stipulation of the parties on file herein, the clerk is directed to issue the remittitur in this case immediately upon filing this opinion. (Cal. Rules of Court, rule 8.272(c)(1).)
We concur: McKINSTER, Acting P.J., MILLER, J.