In Alex R. v. Super. Ct. (Miriam R.)(2016), the family court judge erred in requiring parental notice prior to appointing a guardian ad litem for a minor child, apparently based on his understanding that the summons in this paternity action had been issued before the minor child’s request to have a guardian ad litem appointed.
In 2014, Alex R., then about 10 years old and a Honduran national, entered the United States without documentation. While he now lives with his mother in Los Angeles, he has never resided with the man he identifies as his presumed father.
Alex R. wants to remain in the United States, but to do so legally he must apply to be classified as a special immigrant juvenile (“SIJ”), pursuant to 8 U.S.C. section 1101(a)(27)(J). SIJ status would provide him special immigration protection as an unaccompanied, undocumented child who has been the victim of parental abuse, neglect, abandonment, or a similar circumstance.
Further, as part of the SIJ application process, federal law requires that he petition a state court to make certain factual findings: (1) he is in the custody of a court-appointed agency, guardian or other individual; (2) he cannot reunify with one or both parents due to abuse, neglect, abandonment or other similar basis under state law; and, (3) it is not in Alex R.’s best interest to return to his or her home country or his or her parents’ home country. (Id.; 8 C.F.R. section 204.11(d)(2) (July 6, 2009).) In California, any superior court called upon to adjudicate issues of child custody or welfare has jurisdiction to make the findings necessary to allow him to apply for SIJ status. (Code Civ. Proc. sec. 155(a).) Alex R. filed his parentage (paternity) action in Los Angeles County Superior Court to obtain those specific findings.
Alex R. requested his mother’s sister be appointed as his guardian ad litem, pursuant to Family Code section 7635(a). However, the family court judge refused to appoint a guardian ad litem unless Alex R. gave all interested parties including his presumed father notice of his request to appoint one. No guardian ad litem was appointed at the hearing.
Two and a half months later, Alex R. requested for a second time the appointment of his aunt as his guardian ad litem. At the second hearing, the family court judge again refused to appoint a guardian ad litem because his presumed father was not given notice of the request. The court told counsel that the issue was one of “fundamental due process.” Alex R.’s attorney [correctly] argued that the due process right at stake at the guardian ad litem appointment stage was the right of the petitioning child to have a guardian ad litem appointed (not the father’s right to notice), so that the child’s rights would be protected and the requested litigation could commence. The father would receive notice once the summons was issued.
Alex R.’s attorney advised the family court judge that the leading case concerning guardian ad litem appointments, Williams v. Superior Court (Williams) (2007) 147 Cal.App.4th 36, created no notice requirement pertaining to a minor child’s parents, and that the Williams court specifically recognized that the statute providing for the appointment of guardians ad litem had a “no notice” provision. The family court judge disagreed, however, and rescheduled the hearing, so that Alex R. could serve notice of his request for the appointment to his presumed father.
When Alex R.’s attorney told the judge that he would seek a writ of mandate compelling the judge to order the appointment without notice to the father, the judge welcomed guidance from the appellate court, characterizing these cases as “procedurally difficult.” The judge thought that a summons had been issued although a summons cannot issue until a guardian ad litem is appointed when a minor child is the petitioning party. (Fam. Code sec. 7635(a); Code Civ. Pro. sections 372(a), 373(a).)
For purposes of appointment of the guardian ad litem, the family court judge then took Alex R.’s testimony regarding his relationship with his aunt, so that Alex R. wouldn’t miss any more school.
Alex R. then sought a writ of mandate from the Second District, Division Seven, of the California Court of Appeal.
Relevant Law [abridged and paraphrased]
The appellate court wrote that, as a general rule, a minor who is a party in a lawsuit must appear by a guardian ad litem appointed by the court in which the action or proceeding is pending. (Code Civ. Pro. section 372(a).) In actions such as this one under the Uniform Parentage Act, Family Code section 7600 et seq., the Family Code also mandates that minor children be represented by a guardian ad litem: “If the child is a minor and a party to the action, the child shall be represented by a guardian ad litem appointed by the court.” (Fam. Code section 7635(a).)
Quoting Williams (and paraphrased here): The purpose of a guardian ad litem is to protect the minor’s interests in the litigation, and his or her role is limited in scope. A guardian ad litem is not a party to the action, but is the party’s representative and is an officer of the court. The guardian ad litem is like an agent with limited powers, whose role is more than an attorney’s but less than a party’s and limited to protecting the child‟s interests in the litigation. The role is closely supervised by the judge. Procedurally, if, as here, the petitioning minor is under 14 years old, “the appointment must be made before the summons is issued, upon the application of . . . a relative or friend of the minor.‟ (Code Civ. Pro. section 373(a).) As the Code of Civil Procedure requires that a guardian ad litem be appointed before the summons may be issued, the court‟s refusal to appoint a guardian ad litem prevents him from obtaining a summons and commencing his parentage action.
The appellate court went on (again, paraphrased): Neither the Code of Civil Procedure nor the Family Code requires that Alex R. serve his father with the request for the application for the appointment of a guardian ad before a guardian ad litem may be appointed, and none of the existing statutes provides a mechanism for the service requirement imposed by the court. . . . The Code of Civil Procedure and the Family Code contain no express requirement of notice to a parent before a guardian ad litem is appointed. (Code Civ. Pro. sections 372, 373; Fam. Code section 7635; Williams, supra, 147 Cal.App.4th at p. 48 [“there is no specific statutory requirement that a parent be notified if a nonparent applies to serve as the guardian ad litem”].) It is a “cardinal rule of statutory construction” (People v. Guzman (2005) 35 Cal.4th 577, 587) that court must not “insert what has been omitted” from a statute. (Code Civ. Pro. section 1858.)
The guardian ad litem statute in the Code of Civil Procedure requires parental notice in only one specific instance, not applicable here: when a minor who is living with a parent or guardian appears in court without counsel and seeking one of a set of identified restraining orders or protective orders. In that instance, notice of the appointment of a guardian ad litem must be sent to at least one parent or guardian of the minor unless the court determines that notice would not be in the child‟s best interest. . . . The Legislature‟s express requirement of notice in one specific instance of a guardian ad litem appointment, juxtaposed with its omission of such a requirement with respect to all other guardian ad litem appointments, indicates the Legislature‟s intent not to require service where it did not do so expressly.
Further, not only is there no requirement in the law for service of the guardian ad litem application, the statutes concerning service and notice of actions under the Uniform Parentage Act provide no mechanism for serving the additional pre-summons notice that the court here required. The Family Code requires that all parents, including presumptive parents, be notified of a parentage action in accordance with the provisions of the Code of Civil Procedure. (Fam. Code sections 7635(b), 7666.) The Code of Civil Procedure requires notice of an action to be effectuated by delivering a “copy of the summons and of the complaint to the person to be served.” (Code Civ. Pro. section 415.10.) Alex R. has not been issued a summons, and, consistent with the Code of Civil Procedure, he cannot be issued a summons until his guardian ad litem is appointed. (Code Civ. Pro. section 373(a).) Without a summons, Alex R. cannot comply with the Code of Civil
Procedure‟s notice requirements.
The statutes contemplate that the appointment will be based on an ex parte application because generally no party has been served until the appointment is made. (Citing Williams, at pp. 47-48.)
Moreover, the court noted, “there is no statutory requirement that a parent be notified if a nonparent applies to serve as the guardian ad litem.” (Id. at p. 48.)
The appellate court corrected the family law judge’s analysis of Williams‘ appointment of a maternal grandmother as the guardian ad litem because the father in that case was not challenging the appointment on the grounds that it did not comply with statutory requirements but rather that he had a due process right to choose the guardian ad litem.
Finally, due process does not require notice to a parent prior to appointment of a guardian ad litem. The due process rights of Alex R.’s father are not implicated by Alex R.’s application for appointment of a guardian ad litem. Guardians ad litem exist to protect minors’ rights and interests in litigation under the close supervision of the court. (Williams, at pp. 47, 50.) The appointment of a guardian ad litem for a child does not “affect [a parent’s] parental rights. Instead, the guardian ad litem determination merely concerns a decision as to who will represent the children in
retaining and working with their attorney and assist the court in protecting the children’s legal interests.” (Id. at p. 52.) Alex R.’s father is not disadvantaged in any way by a lack of notice of the appointment of a guardian ad litem for Alex R.—the appointment merely allows Alex R. to assert his rights and appear in court. The ‘central issue’ in appointing a guardian ad litem is not the interests or rights of a parent but “the appropriate protection of the minor’s legal right to recover damages or other requested relief.” (Id. at p. 47.) Accordingly, the appointment of a guardian ad litem is a routine procedure, often ex parte, that is “usually made on application only and involves little exercise of discretion.” (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1149.)
A writ of mandate issued vacating the denial of appointment of a guardian ad litem and for the family court to enter a new order for the appointment of the maternal aunt as Alex R.’s guardian ad litem.