Benjamin E., In re

• Decision Date: 29 March 1996
• Docket Number: No. A070028,A070028
• Citation: 51 Cal.Rptr.2d 584,44 Cal.App.4th 71
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 2231, 96 Daily Journal D.A.R. 3675 In re BENJAMIN E., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY YOUTH AND FAMILY SERVICES DEPARTMENT, Plaintiff and Respondent, v. ALLAN E., Defendant and Appellant.

Page 584

51 Cal.Rptr.2d 584

44 Cal.App.4th 71, 96 Cal. Daily Op. Serv. 2231,

96 Daily Journal D.A.R. 3675

In re BENJAMIN E., a Person Coming Under the Juvenile Court Law.

SAN MATEO COUNTY YOUTH AND FAMILY SERVICES DEPARTMENT, Plaintiff and Respondent, v. ALLAN E., Defendant and Appellant.

No. A070028.

Court of Appeal, First District, Division 4, California.

March 29, 1996.

William Flenniken, Jr., San Francisco, for Appellant.

Thomas F. Casey, III, County Counsel, Mary M. Ash, Deputy County Counsel, Redwood City, for Respondent.

HANLON, Associate Justice.

This is an appeal from a dispositional order entered on March 21, 1995 in a juvenile dependency proceeding pursuant to Welfare and Institutions Code section 395. ¹ Counsel appointed for appellant filed a brief which summarized the procedural and factual background of the proceedings. The facts are not in dispute. Counsel advises us that appellant's opening brief is presented pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende ); In re Brian B. (1983) 141 Cal.App.3d 397, 190 Cal.Rptr. 153, and In re Joyleaf W. (1984) 150 Cal.App.3d 865, 198 Cal.Rptr. 114. By invoking our review pursuant to Wende, counsel advises us that no substantive issues warranting reversal on appeal could be identified. ² We decline to undertake a Wende review and hold that appealable dependency dispositional orders do not warrant the constitutionally protected procedures of Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 as applied pursuant to Wende.

In Wende, supra, 25 Cal.3d at p. 436, 158 Cal.Rptr. 839, 600 P.2d 1071 the California Supreme Court followed the direction of the U.S. Supreme Court in Anders v. California, supra, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The Court held that the courts of appeal have the obligation to independently review the record whenever appointed counsel appealing a criminal conviction submits a brief which raises no specific issues. Appellant contends that the review provisions of Wende are applicable to a parental rights case even though they are derived from the criminal process. Appellant argues that since California has chosen to provide counsel to parents at public expense, the Wende review procedure is the natural result of that decision. Thus, when appointed appellate counsel for the case can find no specific grounds to urge on appeal, it would be incumbent upon the court of appeal to mount its own independent investigation of the record to verify that the finding of that counsel is correct. We reject these lines of argument.

We acknowledge that there is precedent for Wende review in a dependency proceeding pursuant to In re Brian B., supra, 141 Cal.App.3d 397, 190 Cal.Rptr. 153. However, we question whether the right to Wende review applies to a civil proceeding where a child is declared a dependent child and is removed from the home subject to a reunification plan. In this context, the rationale of In re Brian B., supra, is not persuasive. The court there found a "legislative recognition of the strong fundamental rights involved when the People [sic ] separate a child from his parents" from the fact that the Legislature granted appointed counsel to parents in dependency proceedings under Welfare and Institutions Code, section 317. This is not a reason based on a constitutional analysis.

In a criminal case, an indigent defendant's right to court-appointed counsel is based primarily on the fact the defendant's personal liberty is at stake. (See Lassiter v. Department of Social Services (1981) 452 U.S. 18, 25, 101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640.) By contrast, in a civil proceeding to terminate parental rights, the objective is not to prosecute and punish the indigent parent but to protect the child. (In re Michael S. (1981) 127 Cal.App.3d 348, 363-364, 179 Cal.Rptr. 546; In re Mary S. (1986) 186 Cal.App.3d 414, 418, 230 Cal.Rptr. 726.) Consequently the due process clause of the Fourteenth Amendment does not require the appointment of counsel for an indigent parent in every termination of parental rights proceeding. (Lassiter v. Department of Social Services, supra, at p. 18, 101 S.Ct. at p. 2155.) The due process right to appointed counsel in a dependent child or termination of parental rights proceeding depends on weighing governmental versus private interests and the risk the procedures used will lead to erroneous decisions. (Id. at pp. 27-33, 101 S.Ct. at pp. 2159-63.)

In California, indigent parents in dependency and termination of parental rights proceedings have long had a statutory right to court-appointed counsel, at public expense, in the trial courts and on appeal. (Welf. & Inst.Code, §§ 317, 366.26, subd. (f); Cal. Rules of Court, rule 1412(g) & (h).) The section 300 dependent child proceedings have as their goal reunification of the family and do not undertake to terminate parental status and thus do not give rise to a right to counsel on due process grounds. (In re Ammanda G. (1986) 186 Cal.App.3d 1075, 1079, 231 Cal.Rptr. 372; In re Mary S., supra, 186 Cal.App.3d at p. 418, 230 Cal.Rptr. 726.) Thus, as previously noted, the right to counsel is statutory, and in such cases the indigent parent cannot raise the issue of ineffective assistance of counsel on appeal or in a collateral writ proceeding. (In re Ammanda G., supra, at pp. 1079-1080, 231 Cal.Rptr. 372.) In such cases it would be anomalous to hold that the indigent parent nevertheless has a right to Wende review.

We note that courts of appeal have arrived at differing conclusions on the issue of Wende review. The Fourth District, Division Three has issued an opinion holding that appellate courts are under neither a constitutional nor a judicial mandate to apply Wende procedures to other than criminal cases, and policy questions do not require appellate courts to do so in an appeal from a judgment terminating parental rights. (In re Kayla G. (1995) 40 Cal.App.4th 878, 886, 47 Cal.Rptr.2d 86 (Rylaarsdam, J. with separate conc. and dis. opn. by Crosby, J.).) The same day a different panel of the same division issued an opinion holding that the court of appeal must conduct a Wende review to assure itself that the indigent parent received effective assistance of counsel and to determine whether there is, in fact, an arguable issue. (In re Andrew B. (1995) 40 Cal.App.4th 825, 861, 47 Cal.Rptr.2d 604 (Crosby, J. with separate conc. and dis. opn. by Sills, P.J.).)

A month before, Division One of the same district held that the right to counsel in dependency cases was not required under the federal constitution. It further examined the dependency law and found that there was not any other basis for the Wende review. (In re Angelica V. (1995) 39 Cal.App.4th 1007, 1014, 46 Cal.Rptr.2d 295 (Froehlich, J.), review denied January 18, 1996.)

The issue of whether or not to conduct Wende review in dependency cases is now before the Supreme Court in In re Sade C. (1995) 41 Cal.App.4th 1642, 44 Cal.Rptr.2d 509, review granted October 19, 1995. We find the logic of In re Angelica V., supra, 39 Cal.App.4th at p. 1007, 46 Cal.Rptr.2d 295 and In re Kayla G., supra, 40 Cal.App.4th at p. 878, 47 Cal.Rptr.2d 86 persuasive and we adopt the reasoning therein because the issue is one of public interest, and add only one additional reason for our decision.

The laws governing dependency establish an ongoing process to assure, wherever possible, reunification of the family and the return of the child to the custodial parent(s). The first appealable order in the dependency process is the dispositional order. (In re Sheila B. (1993) 19 Cal.App.4th 187, 196, 23...