Right to counsel

Cal. Fam. Code § 8606 of the Adoption Code requires that, in absence of parental consent to adoption, the child was either (a) abandoned or (b) freed from parental control in order to be available for adoption, and the latter proceedings are governed by the Family Code part titled “Freedom from Parental Custody and Control”, Cal. Fam. Code § 7800 to § 7895.  Proceedings to free a child from parental control can be invoked by private parties. Cal. Fam. Code § 7841.

The part provides a right to counsel in such matters at Cal. Fam. Code § 7862. See also § 7827 (as to the right to counsel for parents where termination is sought based upon allegations that the parent is “mentally disabled” such that they are “unable to care for and control the child adequately”).  The right to counsel applies on appeal.  Although Cal. Fam. Code § 7895 only refers to parents of dependent children having a right to counsel on appeal, the California Supreme Court held in In re J.W., that the right extends to parents of all children, not just parents of dependent children. 57 P.3d 363, 365 (Cal. 2002) (“To avoid rendering Family Code section 7895 entirely useless, we construe it as establishing a right to appointed appellate counsel for any indigent parent appealing from a judgment freeing a child from parental custody and control.”) (overruling In re Curtis S., 30 Cal. Rptr.2d 739 [Cal. Ct. App. 1994]).  This appeal right is limited to when the parent is appealing, not the State. Id.

Additionally, Cal. Fam. Code § 8800(d)(1) states that in independent adoptions, the birth parents must be notified of “their right to have an independent attorney advise and represent them in the adoption proceeding and that the prospective adoptive parents may be required to pay the reasonable attorney’s fees up to a maximum of five hundred dollars ($500) for that representation, unless a higher fee is agreed to by the parties.”  Subsection (e) adds, “Upon the petition or motion of any party, or upon motion of the court, the court may appoint an attorney to represent a child’s birth parent or parents in negotiations or proceedings in connection with the child’s adoption.”

Where a parent seeks to relinquish rights to an adoption agency, Cal. Fam. Code § 8700.5(b) states:

The waiver of the right to revoke relinquishment may not be signed until the department, delegated county adoption agency, or public adoption agency of another state has completed an interview, unless the waiver is signed in the presence of a judicial officer of a court of record of any state or an authorized representative of a private adoption agency licensed within or outside of California. If the waiver is signed in the presence of a judicial officer, the interview and witnessing of the signing of the waiver shall be conducted by the judicial officer. If the waiver is signed in the presence of an authorized representative of a licensed adoption agency, the interview shall be conducted by the independent legal counsel for the birth parent or parents …

If a parent seeks to voluntarily relinquish her rights in an adoption arising within the context of a parentage action, Cal. Fam. Code § 7605(a) states:

In any proceeding to establish physical or legal custody of a child or a visitation order under this part, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a government entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.