In re Josiah Z. 5/19/04 CA5

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F044121

Case Date: 05/19/2004

Preview:Filed 5/19/04

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT In re JOSIAH Z., et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. JOSIAH Z., et al., Appellants. OPINION F044121 (Super. Ct. Nos. JD097344 & JD097345

APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee. Marin Williamson, under appointment by the Court of Appeal, for Appellants. Michelle R. Trujillo, under appointment by the Superior Court, for Appellants. B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.

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At issue before this court is a preliminary question in an appeal brought by trial counsel for two dependent children, ages four and one. The question is whether the children's appellate counsel has the authority to dismiss their appeal based on her analysis of their best interests. On review, we hold appellate counsel has no such authority. FACTUAL AND PROCEDURAL HISTORY In August 2002, the Kern County Superior Court adjudged two-year-old Josiah and infant Gabriel dependent children of the court and removed them from parental custody. The court previously determined the children came within its jurisdiction under Welfare and Institutions Code section 300, subdivision (b) after Gabriel tested positive for drugs at birth.1 Not only were the children at substantial risk of physical harm or illness due to their mother's drug abuse, their father had been physically abusive of their mother. After both parents failed to reunify with their sons, the court in July 2003 terminated reunification services and set a section 366.26 hearing. Having made its setting order, the court then granted a request by the childrens' attorney for a hearing on relative placement. The paternal grandparents previously requested placement of the children in their home, but their request was denied. Claiming she did not know the reason for the denial, children's trial attorney claimed a right to a hearing on the issue. The court conducted the evidentiary hearing in September 2003. Respondent Kern County Department of Human Services (the department) made a showing that each of the paternal grandparents had a criminal record and the paternal grandmother's own children had been juvenile dependents due to her neglect. Further, the placement worker for the department and later her supervisor denied the paternal grandparents' 2002 requests for an exemption (

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