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Name: In re Andrew M.
Case #: B294704
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 03/20/2020
Summary

Where juvenile court did not appoint counsel for incarcerated father, reversal was required. Andrew’s older brother E.M. was made a dependent in 2017, and placed with father with an order of family maintenance services. Shortly thereafter, Andrew was born. Two months after his birth, both parents were arrested. Father arranged for an aunt to live in his apartment and care for the two minors. He filled out an “affidavit with consent” and asked DCFS to place the children with the aunt or the paternal grandmother. Father was not notified of the detention hearing. His attorney for E.M.’s case appeared only on E.M.’s subsequent petition. The juvenile court granted father’s request to continue Andrew’s hearing so father could attend. Some months later, father was sentenced to 25 years in prison. He waived waived his right to appear at the hearing about Andrew, but did not decline representation. In advance of the jurisdiction hearing, father executed a JV-451 form requesting that an attorney be appointed to represent him, and declining to appear. Father again requested appointment of counsel at the jurisdiction hearing, but declined to appear. The juvenile court found Andrew to be a dependent, and ordered monitored visitation. On appeal, father argued that the failure to appoint counsel was error. The appellate court agreed and reversed the jurisdiction finding. An incarcerated parent may waive his appearance, but the court may only adjudicate the petition if that parent has representation at the hearing. Father requested appointment of counsel six out of nine times for each of the scheduled hearings in both minors’ cases. Father’s decision to waive his appearance did not constitute a knowing and intelligent waiver of his right to representation. It was reasonably probable that a more favorable result would have been reached if an attorney had been appointed for father. The juvenile court found that father was a biological father, the effect of which will affect his right to reunification services. The facts supported a finding of presumed fatherhood. Reversal was required for a new hearing, and the trial court is directed to appoint counsel for father.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B294704.PDF