Kayla G., In re, No. G016858

• Court: California Court of Appeals
• Writing for the Court: RYLAARSDAM; CROSBY
• Citation: 47 Cal.Rptr.2d 86,40 Cal.App.4th 878
• Parties: , 95 Cal. Daily Op. Serv. 9123, 95 Daily Journal D.A.R. 15,777 In re KAYLA G., A Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. KEVIN J., Defendant and Appellant.
• Docket Number: No. G016858
• Decision Date: 30 November 1995

Page 86

47 Cal.Rptr.2d 86 40 Cal.App.4th 878, 95 Cal. Daily Op. Serv. 9123, 95 Daily Journal D.A.R. 15,777 In re KAYLA G., A Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
v.
KEVIN J., Defendant and Appellant. No. G016858. Court of Appeal, Fourth District, Division 3, California. Nov. 30, 1995.

Page 87

Terry C. Andrus, County Counsel, and Margaret E. Eastman, Deputy County Counsel, for Plaintiff and Respondent.

Stephen S. Buckley, Mission Viejo, CA, under appointment by the Court of Appeal, for the Minor.

RYLAARSDAM, Associate Justice.

In this case, Kevin J's parental rights were terminated at a selection and implementation hearing (Welf. & Inst.Code, § 366.26). He exercised his statutory right to appeal. Because he is unable to afford counsel, this court appointed a competent attorney to represent him at taxpayer's expense (Cal.Rules of Court, rule 1435(b); In re Simeth (1974) 40 Cal.App.3d 982, 984, 115 Cal.Rptr. 617) and provided him with a record at no cost (Welf. & Inst.Code, § 395). Counsel filed an opening brief providing us with an adequate summary of the facts. She did not argue against her client but advised us she found no issues to assert on appellant's behalf and requested we independently review the record for error, as is required in criminal appeals under People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende ).

We recognize our obligation to provide independent review of the record in criminal cases because of the mandate imposed upon us by the California Supreme Court in Wende. However, neither the United States Constitution nor any decision of the California Supreme Court compels us to extend the Wende procedures to judgments terminating parental rights.

DISCUSSION

The Anders Decision and California's Response

In Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, a companion case to Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the United States Supreme Court held an indigent criminal defendant has a constitutional right to appointed counsel on a first appeal as a matter of right. (Douglas, supra, at p. 355, 83 S.Ct. at pp. 815-816.) Prior thereto, California's procedure provided [40 Cal.App.4th 881] for the appointment of such counsel only when the appellate court, after an independent review of the record, determined such appointment would be of value to the defendant or the court. (People v. Hyde (1958) 51 Cal.2d 152, 154, 331 P.2d 42.)

The discord between the absolute right of the indigent defendant to the appointment of counsel and the duty of such counsel not to pursue a frivolous appeal was initially resolved in California in In re Nash (1964) 61 Cal.2d 491, 39 Cal.Rptr. 205, 393 P.2d 405, which held appointed counsel could, by letter, inform the court "he could find no meritorious grounds of appeal and refuse[ ] to file a brief or argue the case orally." (Id. at p. 495, 39 Cal.Rptr. 205, 393 P.2d 405.) If, following receipt of such advice, the court itself reviewed the record and determined counsel's advice was correct, the requirements announced in Douglas would be satisfied. (Ibid.)

In Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (Anders ) the Supreme Court expressly disapproved the procedure described in Nash, holding it violated the indigent defendant's right to have counsel act as an "active advocate." (Id. at p. 744, 87 S.Ct. at p. 1400.) Instead, Anders mandated a procedure whereby counsel, after determining the appeal was frivolous, must "so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." (Ibid.)

Justice Traynor, writing for the California Supreme Court in People v. Feggans (1967) 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21, adopted the procedure outlined in Anders. Counsel were to file a brief which "must set forth a statement of the facts with citations to the transcript, discuss the legal issues with citations of appropriate authority, and argue all issues that are arguable.... If counsel concludes that there are no arguable issues

Page 88

and the appeal is frivolous, he may limit his brief to a statement of the facts and applicable law and may ask to withdraw.... If counsel is allowed to withdraw, defendant must be given an opportunity to present a brief, and thereafter the court must decide for itself whether the appeal is frivolous." (Id. at pp. 447-448, 62 Cal.Rptr. 419, 432 P.2d 21.)

Thirteen years later, the California Supreme Court in Wende reinterpreted Feggans and Anders to require independent judicial review of the entire record as distinguished from the proceedings. "We conclude that Anders [40 Cal.App.4th 882] requires the court to conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous." (People v. Wende, supra, 25 Cal.3d at p. 441, 158 Cal.Rptr. 839, 600 P.2d 1071.) Justice Clark, noting the distinction between a review of the proceedings, as mandated by Anders, and a review of the entire record for error, dissented and noted "The majority today effectively designate our already overburdened Courts of Appeal as cocounsel to indigents convicted of crime on unassailable records." (Id. at p. 447, 158 Cal.Rptr. 839, 600 P.2d 1071 (conc. and dis. opn. of Clark, J.).)

Without analyzing either the basis for the Wende procedure or the applicability of Anders to juvenile dependency and termination of parental rights proceedings, Division One of this court concluded the statutory right to counsel in such cases necessarily entitled indigent parents to the same appellate review as that extended to indigent criminal defendants under Wende. (In re Joyleaf W. (1984) 150 Cal.App.3d 865, 868-869, 198 Cal.Rptr. 114; In re Brian B. (1983) 141 Cal.App.3d 397, 398, 190 Cal.Rptr. 153.) Recently, other courts have refused to follow this procedure and the issue is currently pending before the California Supreme Court. (See In re Sade C. (1995) 37 Cal.App.4th 88, 44 Cal.Rptr.2d 509, review granted October 19, 1995 (S048796); ^*(Cal.App.); also see In re Angelica V. (1995) 39 Cal.App.4th 1007, 46 Cal.Rptr.2d 295.)

Wende's Requirement for Independent Judicial Review of the Record Is Not Compelled by Anders

The Wende court's conclusion that, if appointed counsel determines the appeal is frivolous, the court must independently search the entire record for error, rests upon the interpretation of a single, admittedly somewhat ambiguous word in Anders. In the latter case, the Supreme Court noted the appellate court must decide whether the case is "wholly frivolous" after the court conducts "a full examination of all the proceedings." (Anders v. California, supra, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400.)

Wende and its progeny interpret "proceedings" to be coextensive with the "record," thus requiring a full examination of the record below. However, the word "proceedings" in Anders should be viewed in the light of the context in which the Supreme Court used it. Immediately preceding the imposition of the requirement there be "a full examination of all the proceedings," the court describes and refers to the "proceedings" which precede the dismissal of the appeal: "[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be [40 Cal.App.4th 883] accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal...." (Anders v. State of California, supra, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, emphasis added.)

It should first be noted that requiring counsel to refer "to anything in the record which might arguably support the appeal," would be superfluous if the appellate courts are also to engage in an independent review of the record to determine whether error could be found. Secondly, the use of "record" and "proceedings" in such close conjunction

Page 89

suggests the court meant for these words to mean something different. Therefore, we conclude the court intended the appellate court to review the "proceedings" as outlined in the brief required to be filed by appointed counsel and on such additional points as may be raised by the indigent defendant.

This conclusion is further supported by footnote 3 to Anders, where the court references the review procedures then being followed in the United States Court of Appeals for the District of Columbia Circuit. (Anders v. State of California, supra, 386 U.S. 738, 744, fn. 3, 87 S.Ct. 1396, 1400, fn. 3.) Those procedures are explained in Tate v. United States (D.C.Cir.1966) 359 F.2d 245 and Johnson v. United States (D.C.Cir.1966) 360 F.2d 844.

In Tate, which consolidated two otherwise unrelated cases, counsel for each indigent defendant advised the court there was no merit to their appeals, although neither counsel had the benefit of a transcript of the proceedings below. Citing Hardy v. United States (1964) 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331, the court noted an indigent defendant seeking to appeal in forma pauperis, who is not represented by trial counsel, is entitled to a complete transcript. (Tate...