County of Madera v. Jacobson

• Decision Date: 27 August 1987
• Citation: 239 Cal.Rptr. 602,194 Cal.App.3d 569
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF MADERA, Plaintiff and Respondent, v. Robert O. JACOBSON, Defendant and Appellant. F007310.

Page 602

239 Cal.Rptr. 602

194 Cal.App.3d 569

COUNTY OF MADERA, Plaintiff and Respondent, v. Robert O. JACOBSON, Defendant and Appellant.

F007310.

Court of Appeal, Fifth District, California.

Aug. 27, 1987.

Certified for Partial Publication ^*

Review Denied Nov. 18, 1987.

[194 Cal.App.3d 570] Nancy Marsh, Fresno, for defendant and appellant.

David D. Minier, Dist. Atty., County of Madera, Madera, for plaintiff and respondent; Roger L. Wayne, Deputy Dist. Atty., of counsel.

OPINION

THE COURT ^**

Appellant Robert Olin Jacobson appeals from the June 9, 1986, judgment entered following a May 23, 1986, court trial at which he was found to be the father of J.S., born out of wedlock to Doris B. on June 12, 1982.

The action under review was initiated by the District Attorney of Madera County pursuant to his obligation to enforce the support obligations of parents, determine paternity, and seek reimbursement of funds expended as Aid to Families with Dependent Children (AFDC). (Welf. & Inst.Code, §§ 11475-11489.) In addition to resolving the paternity issue, the court ordered appellant to reimburse the county $5,750 for AFDC rendered by the county for support of J.S. at the rate of $50 per month, and to pay $250 per month prospectively for the support and maintenance of the minor. (Welf. & Inst.Code, § 11350.)

I Applicability of Wende Review

Appellant's appointed appellate counsel has filed an opening brief which summarizes the material facts, with citations to the record. Counsel states that she has been unable to find any arguable appellate issues and asks this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. ¹ In People v. Wende, at pages 440-442, 158 Cal.Rptr. 839, 600 P.2d 1071, the California Supreme Court directed the Courts of Appeal to review the entire record whenever appointed counsel for an indigent criminal defendant submits a brief which raises no specific issues or describes the appeal as frivolous.

Counsel acknowledges that her research fails to disclose any case authority for applying Wende to an appeal in a paternity action, but submits that the same principles which led to the application of Wende in other civil contexts (see e.g., Conservatorship of Besoyan (1986) 181 Cal.App.3d 34, 38, 226 Cal.Rptr. 196 [proceeding to impose a Lanterman-Petris-Short (LPS) conservatorship (Welf. & Inst. Code, § 5350) upon a person who is determined to be gravely disabled (Welf. & Inst. Code, § 5008, subd. (h)(1)) ]; In re Joyleaf W. (1984) 150 Cal.App.3d 865, 868-869, 198 Cal.Rptr. 114 [proceeding to terminate parental care and control (Civ.Code, § 232) ]; In re Brian B. (1983) 141 Cal.App.3d 397, 398, 190 Cal.Rptr. 153 [proceeding to declare a minor a dependent child of the juvenile court (Welf. & Inst. Code, § 300) ] ) should apply here.

In In re Brian B., supra, 141 Cal.App.3d 397, 190 Cal.Rptr. 153, the Fourth District, Division One, extended Wende review to a parent's appeal from an order continuing her child as a dependent child of the court. In declining to limit Wende to criminal proceedings, the court reasoned:

"Parents in dependent children proceedings under Welfare and Institutions Code section 300 are entitled to the appointment of counsel (Welf. & Inst.Code, § 317). That constitutes a legislative recognition of the strong fundamental rights involved when the People separate a child from his parents. We find no valid reason to accord a parent in that situation a lesser degree of review than is accorded a criminal defendant. While the court deciding In re Jessie H. (1981) 126 Cal.App.3d 1048 ..., did not address the specific issue here involved, the fact it dealt with a dependency proceeding by utilizing a Wende review implicitly recognizes the availability of that review by an appellate court." (Id. at pp. 398-399, 190 Cal.Rptr. 153.)

Next, in In re Joyleaf W., supra, 150 Cal.App.3d 865, 198 Cal.Rptr. 114, the same court again rejected a limited application of Wende and extended independent review to the parents' appeal from a judgment freeing their child from their custody and control. The court reasoned that the current case presented even a more compelling showing for Wende review than did Brian B., supra.

"In dependency proceedings, the juvenile court assumes jurisdiction over the child on a continuing basis for the welfare of the minor predicated on a variety of circumstances. [p] Under section 300[,] subdivisions (a) through (d), a parent may lose custody of a child on a 'non-conclusive basis.' (In re Norma M. (1975) 53 Cal.App.3d 344, 346 [125 Cal.Rptr 721]....) Dependency proceedings may result in a temporary loss of custody. For example, parent compliance with a reunification plan might evidence willingness to correct the causes supporting the findings of dependency. Such remedial measures might result in a return of the child to the home.

"The loss threatened by a Civil Code section 232 proceeding is of far graver consequence. A judgment against the parent permanently severs the parent/child relationship. The rights to conceive and raise children are basic to our concept of a society concerned with individual freedoms and constraints on state action. Surely, parents of a child sought to be taken permanently from their custody by the state are entitled to the appellate review afforded the criminal defendant whose freedom is abridged by state action...." (Id., at pp. 868-869, 198 Cal.Rptr. 114, fn. omitted.)

Finally, in Conservatorship of Besoyan, supra, 181 Cal.App.3d 34, 226 Cal.Rptr. 196, this court extended Wende review to an appeal from an order granting a LPS conservatorship. We noted the potential "serious deprivation of personal liberty" (id. at p. 36, 226 Cal.Rptr. 196), the "loss of many other liberties" (id. at p. 37, 226 Cal.Rptr. 196), numerous potential statutory disabilities and "collateral consequences [that] remain even after the conservatorship has been terminated." (Ibid.) As a further index of the gravity of such proceedings, we noted the constitutional and statutory protections accorded the conservatee, including the right to appointed counsel and to appellate review. (Id. at p. 38, 226 Cal.Rptr. 196.)

In Salas v. Cortez (1979) 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226, in holding that an indigent paternity defendant had a right to appointed counsel, the California Supreme Court cogently summarized the far-reaching consequences of a paternity finding:

"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 (Civ.Code, §§ 196a, 7012), an obligation that does not end at the child's age of majority. (Civ.Code, § 206.) Moreover, a child support order is more freely enforceable by garnishment than an ordinary civil judgment (15 U.S.C. § 1673(b)(1); Int.Rev.Code, § 6103(l )(6); Code Civ.Proc., § 690.6), and is not dischargeable in bankruptcy (11 U.S.C. § 35(a)(7)). Also, the failure to pay child support may be enforced through the civil contempt power (Civ.Code, § 7012), as well as the Uniform Civil Liability Act (Civ.Code, § 241 et seq.) and interstate assistance statutes (42 U.S.C. §§ 651-655; Code Civ.Proc., § 1650 et seq.). A judgment of paternity, even if taken by default, is res judicata in any subsequent civil enforcement proceeding. (Civ.Code, § 7010, subd. (a).) [p] Failure to support a child may also be prosecuted criminally. (Pen.Code, § 270.) ..." (Id. at p. 28, 154 Cal.Rptr. 529, 593 P.2d 226, fns. omitted.)

Clearly our Supreme Court views as profoundly significant the deprivation of property and, in certain cases, liberty faced by a man adjudicated to be a child's father. Indeed, the California Supreme Court has determined an indigent defendant in a paternity proceeding shall have appointed counsel so that he may defend fully and fairly. (Id. at p. 34, 154 Cal.Rptr. 529, 593 P.2d 226.)

For purposes of the applicability of Wende review, we conclude 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. (Cf. In re Jay R. (1983) 150 Cal.App.3d 251, 261, 197 Cal.Rptr. 672.) Wende review is applicable. ²

II ^***

III

We have independently reviewed the whole of the record and find that no arguable factual or legal issues exist. (People v. Wende, supra, 25 Cal.3d 436, 440-442, 158 Cal.Rptr. 839, 600 P.2d 1071.)

The judgment is affirmed.

* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.

** Before BROWN (GEO. A.), P.J., and FRANSON and MARTIN, JJ.

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