County of Kern v. Dillier

• Decision Date: 16 February 1999
• Docket Number: No. F030213,F030213
• Citation: 69 Cal.App.4th 1412,82 Cal.Rptr.2d 318
• Parties: , 99 Cal. Daily Op. Serv. 1242, 1999 Daily Journal D.A.R. 1561 COUNTY OF KERN, Plaintiff and Respondent, v. David Allen DILLIER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 318

82 Cal.Rptr.2d 318

69 Cal.App.4th 1412, 99 Cal. Daily Op. Serv. 1242,

1999 Daily Journal D.A.R. 1561

COUNTY OF KERN, Plaintiff and Respondent, v. David Allen DILLIER, Defendant and Appellant.

No. F030213.

Court of Appeal, Fifth District, California.

Feb. 16, 1999.

Certified for Partial Publication. ^*

[69 Cal.App.4th 1414] Catherine Campbell, under appointment by the Court of Appeal, Fresno, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carol Ann White, Statewide Support Coordinator and Mary Jane Hamilton, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

Ardaiz, P.J.

On September 19, 1997, the Kern County District Attorney's Office initiated a civil action against appellant, David Dillier, to establish his paternity of, and parental obligations for, four minor children. On this same date, the District Attorney's Office also submitted a proposed judgment that, if approved by the court, would establish appellant's paternity, the amount of monthly child support he was to pay in the future, and the amount he owed the County as reimbursement for past public assistance payments made on behalf of the children.

Appellant was personally served with the summons and complaint on October 22, 1997, while incarcerated in state prison. Accompanying these pleadings was a document which advised appellant that he had a right to counsel but had to ask that counsel be appointed if he could not afford to hire his own. This same document also apprised appellant that a default judgment would be entered against him if he failed to file a written answer within 30 days of being served with the summons and complaint.

On December 1, 1997, no answer having been filed, or extension of time for doing so having been granted, the District Attorney asked the court to enter a default judgment declaring appellant the father of the minor children and setting a specific amount of child support to be paid.

On January 9, 1998, the trial court, by way of default under Welfare and Institutions Code section 11355, adjudged appellant to be the father of all four minor children but reserved jurisdiction on the issue of child support since appellant was then serving a state prison commitment and had no wages or other funds from which to pay said support.

Appellant timely filed his notice of appeal on February 2, 1998. ¹

On August 24, 1998, counsel for appellant filed a Wende ² brief with this court. In it, counsel represented that she had reviewed the record of the proceedings below and found no arguable issues to raise on appeal. Counsel asked that we conduct an independent review of the record to determine whether any issues exist which, if resolved favorably to appellant, would result in reversal or modification of the judgment of the trial court. She cites Wende and People v. Johnson (1981) 123 Cal.App.3d 106, 109-112, 176 Cal.Rptr. 390, as support for this request.

By order dated August 28, 1998, we ordered counsel for the father and counsel for the children to file supplemental briefs addressing this issue in light of our Supreme Court's decision in In re Sade C. (1996) 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920 P.2d 716 (hereinafter Sade ). We have now received those briefs and, after considering the matter, conclude that, given the circumstances of this case, appellant is not entitled to such review.

DISCUSSION

I ^**

II APPELLANT IS NOT ENTITLED TO ANDERS/WENDE REVIEW

This case gives us occasion to revisit our decision in County of Madera v. Jacobson (1987) 194 Cal.App.3d 569, 570, 239 Cal.Rptr. 602, where the government initiated a paternity action in which it sought a determination of the father's paternity, reimbursement of $5,750 in funds expended as aid to families with dependent children, and an order setting monthly child support at $250. We concluded that the "multidimensional character of a paternity finding entitles an indigent defendant to the same manner of appellate review as given to the indigent parent faced with temporary or permanent loss of custody of a child." (Id. at p. 573, 239 Cal.Rptr. 602, hereinafter Jacobson.)

We came to this conclusion after examining those cases that provided Wende review in other civil contexts -- namely conservatorship proceedings and dependency proceedings where a minor child had been declared a ward of the court or parental rights had been terminated. (Jacobson, supra, 194 Cal.App.3d at pp. 571-572, 239 Cal.Rptr. 602, relying on Conservatorship of Besoyan (1986) 181 Cal.App.3d 34, 38, 226 Cal.Rptr. 196 [conservatorship]; In re Joyleaf W. (1984) 150 Cal.App.3d 865, 868-869, 198 Cal.Rptr. 114 [dependency proceeding to terminate parental rights], and In re Brian B. (1983) 141 Cal.App.3d 397, 398, 190 Cal.Rptr. 153 [dependency proceeding to declare a minor a ward of the court] (hereinafter Brian B.).)

We also relied on the importance our Supreme Court attached to paternity findings in Salas v. Cortez, supra, 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226 (hereinafter Salas ). Chief Justice Bird, writing for a bare majority of the court, said the following about those interests:

"An adjudication of paternity may profoundly affect a person's life. It may disrupt an established family and damage reputations. Further, a court's determination of paternity exposes a defendant to deprivation of property and, potentially, liberty. It entails the obligation to support and educate a child [citations], an obligation that does not end at the child's age of majority. [Citation.] Moreover, a child support order is more freely enforceable by garnishment than an ordinary civil judgment [citations], and is not dischargeable in bankruptcy [citation]. Also, the failure to pay child support may be enforced through the civil contempt power [citation], as well as the Uniform Civil Liability Act [citation] and interstate assistance statutes [citations]. A judgment of paternity, even if taken by default, is res judicata in any subsequent civil enforcement proceeding. [Citation.] [p ] Failure to support a child may also be prosecuted criminally. (Pen.Code, § 270.)...." (Salas, 24 Cal.3d at p. 28, 154 Cal.Rptr. 529, 593 P.2d 226, fns. omitted.)

The Salas majority also focused on the inequality of representation that would result should it find against appointment of counsel for the indigent party whose fatherhood was being challenged. To demonstrate the inequity of representation between the parties, the court had to look no further than the two cases then pending before it. The court observed that, in state-prosecuted actions, the plaintiffs (usually the mother and/or the minor child) were represented free of any charge by a district attorney who frequently is a specialist in the field. Whereas neither of the indigent men before it whose children were alleged to have been born out of wedlock had any working knowledge of the legal system, only one had little knowledge of the English language, and without legal assistance, neither was able to procure the experts needed to perform the blood tests that might exonerate them. (24 Cal.3d at p. 30, 154 Cal.Rptr. 529, 593 P.2d 226.) The court also observed that both men were found to be the father in their respective cases based solely on alleged facts which were deemed admitted because they went uncontradicted and testimony of the mother which was not subjected to cross-examination. (Id. at pp. 30-31, 154 Cal.Rptr. 529, 593 P.2d 226.) The Salas court concluded that decisions rendered in this manner were not only unfair but unreliable. (Id. at p. 31, 154 Cal.Rptr. 529, 593 P.2d 226.)

The Salas majority expressly rejected the argument that the men in paternity actions are not entitled to appointed counsel because they are no different than other civil litigants. ⁴ (24 Cal.3d at pp. 31-32, 154 Cal.Rptr 529, 593 P.2d 226.) In doing so, the court reasoned that paternity actions are unlike ordinary civil actions because the potential father finds himself pitted against the full power of the state in a case where the existence of a biological relationship -- one which carries with it serious financial, legal and moral obligations -- is to be determined.

The Salas majority ultimately concluded that these interests were sufficiently great that the Fourteenth Amendment of the United States Constitution and article I, section 7, subdivision (a) of the California Constitution mandated that counsel be appointed for an indigent parent at the trial court level. (County of Madera v. Jacobson, supra, 194 Cal.App.3d at p. 572, 239 Cal.Rptr. 602, citing Salas, 24 Cal.3d at pp. 26, 28, 34, 154 Cal.Rptr. 529, 593 P.2d 226 (maj. op., Bird C.J.).)

Meanwhile, in other contexts, courts were declining to extend Wende. They refused to expand Wende to general civil cases. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1115, 1117, fn. 2, 210 Cal.Rptr. 109; Grillo v. Smith (1983) 144 Cal.App.3d 868, 870, 873, fn. 3, 193 Cal.Rptr. 414.) The courts also declined to conduct a partial independent review where counsel raised at least one issue on appeal. (People v. Woodard (1986) 184 Cal.App.3d 944, 946-947, 229 Cal.Rptr. 350; People v. Johnson, supra, 123 Cal.App.3d at p. 110, 176 Cal.Rptr. 390.)

This disagreement over the scope of Wende continued. In 1992, for example, one court held that Wende review was not available to a criminal defendant with retained, as opposed to appointed, counsel. (People v. Placencia (1992) 9 Cal.App.4th 422, 424, 11 Cal.Rptr.2d 727.) In 1995, the court that decided In re Brian B., supra, 141 Cal.App.3d 397, 190 Cal.Rptr. 153 and In re Joyleaf W., supra, 150 Cal.App.3d 865, 198 Cal.Rptr. 114, two of the cases upon which we rested our decision in Jacobson, supra, 194 Cal.App.3d 569, 239 Cal.Rptr. 602, reversed course, disapproved these decisions, and found that Wende did not extend to appeals from an order terminating parental rights. ⁵ (In re Angelica V. (1995) 39...