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In re Phoenix H.

December 21, 2009

IN RE PHOENIX H. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
M. H., DEFENDANT AND APPELLANT.



Court: Superior County: San Diego Judge: Peter E. Riddle*fn1 Ct.App. 4/1 D050304 San Diego County Super. Ct. No. SJ11392.

The opinion of the court was delivered by: Moreno, J.

In People v. Wende (1979) 25 Cal.3d 436, 441, we held that when appointed counsel in an appeal from a criminal conviction files a brief raising no issues, the appellate court must review the entire record to determine whether there are any arguable issues. In In re Sade C. (1996) 13 Cal.4th 952, 981-982, we held that such a review of the entire record is not required in an appeal like that in the present case from a juvenile court order affecting parental rights when appointed counsel for the parent files a brief raising no issues. We similarly held in Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 that when appointed counsel in an appeal from the imposition of a conservatorship files a brief raising no issues, a review of the entire record is not required, but we added in a footnote: "The conservatee is to be provided a copy of the brief and informed of the right to file a supplemental brief." (Id. at p. 544, fn. 6.)

In the present case, appointed counsel for a parent whose parental rights were terminated by the juvenile court filed a brief raising no issues, but asked the court to permit the parent to personally file a supplemental brief. The Court of Appeal denied the request and dismissed the appeal. For the reasons that follow, we conclude that the Court of Appeal did not abuse its discretion in denying the parent's request to personally file an additional brief and properly dismissed the appeal.

Facts

On January 31, 2007, the juvenile division of the San Diego Superior Court terminated M. H.'s parental rights to her sons, 2-year- old Phoenix and 1-year-old Dakota, and chose adoption as the permanent plan pursuant to Welfare and Institutions Code section 366.26, subdivision (b)(1). M. H. filed a timely notice of appeal. Her appointed counsel filed a 30-page opening brief that described in detail the procedural history and facts of the case but raised "no specific arguable issues" on appeal. Rather, counsel asked the Court of Appeal to exercise its discretion to independently review the entire record on appeal to determine whether reversible errors were made. In addition, counsel requested that the Court of Appeal provide M. H. "the opportunity to file her own supplemental brief within 30 days."

The Court of Appeal "decline[d] to review the record independently for error." The court concluded that it had "inherent discretion" to permit M. H. to file an additional brief in propria persona, but found "no reason to allow it in this case." In a footnote, the court observed that the First, Second, and Fifth Districts, as well as two divisions of the Fourth District, "allow a parent 30 days to file a supplemental brief in propria persona. The Third and Sixth Districts do not allow supplemental briefing." The Court of Appeal denied the parent's request to personally file a brief and dismissed the appeal. We granted review.

Discussion

On appeal from a juvenile court's order terminating parental rights, the parent has a statutory right to appointed counsel. (Fam. Code, § 7895.) In the present case, counsel was appointed to represent M. H. on appeal, but did not identify any issues to argue. Both the United States Supreme Court and this court have considered in several contexts what procedures should be followed when counsel appointed to represent an indigent client on appeal concludes there are no arguable issues to raise.

More than 40 years ago, in Anders v. California (1967) 386 U.S. 738, an attorney appointed by the California Court of Appeal to prosecute a criminal defendant's first appeal as of right from a conviction for felony possession of marijuana determined that the appeal had no merit. The attorney filed a letter with the court that stated: " `I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and opinions to him . . . . (H)e wishes to file a brief in this matter on his own behalf.' " (Id. at p. 742.) The defendant asked the court to appoint another attorney, but the court declined. The defendant then filed a brief in propria persona. The Court of Appeal affirmed the judgment of conviction. (Id. at pp. 739-740.)

The high court ruled that Anders had been denied his right to counsel, concluding that "counsel's bare conclusion, as evidenced by his letter, was not enough" because this procedure was not " `an adequate substitute for the right to full appellate review available to all defendants' who may not be able to afford such an expense." (Anders v. California, supra, 386 U.S. at pp. 742-743.) The high court observed that "California's procedure did not furnish petitioner with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity." (Id. at p. 743.) The court in Anders then described how appointed counsel and the Court of Appeal should have proceeded: "Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if 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 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 insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." (Id. at p. 744, fn. omitted.)

In People v. Wende, supra, 25 Cal.3d 436, we followed the holding in Anders that the appellate court must examine the entire record when appointed counsel in a criminal case determines there is no merit to the defendant's first appeal as of right, but we diverged from the decision in Anders by holding that counsel need not withdraw from the case.

Wende was convicted of robbery. His appointed counsel on appeal "filed a brief which set forth a summary of the proceedings and facts with citations to the transcript, raised no specific issues, and called upon the court to make a thorough review of the entire record to determine for itself whether there were any arguable issues. Counsel also submitted a declaration stating that he had advised defendant of the nature of the brief, that he would send defendant a copy of the brief, and that he had informed defendant that the court would permit him to file a brief on his own behalf. Counsel also stated that he was not requesting to withdraw but that he would advise defendant that he could move to have counsel relieved if he so desired." (People v. Wende, supra, 25 Cal.3d at p. 438.) The Court of Appeal dismissed the appeal without conducting a review of the entire record. (Ibid.) The People argued that the Court of Appeal was not required to review the entire record because, unlike in Anders, the defendant had not filed a brief in propria persona. (Id. at p. 440.)

We held that the Court of Appeal must "conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous. This obligation is triggered by the receipt of such a brief from counsel and does not depend on the subsequent receipt of a brief from the defendant personally." (People v. Wende, supra, 25 Cal.3d at pp. 441-442.) We further held that counsel was not required to seek leave to withdraw "so long as he has not described the appeal as frivolous and has informed the defendant that he may request the court to have counsel relieved if he so desires." (Id. at p. 442, fn. omitted.) This court reviewed the entire record and found no arguable issues. We declined to dismiss the appeal, stating: "In view of the fact that we have made a thorough review of the merits and have heard argument on the case, we deem it appropriate to affirm the judgment rather than dismiss the appeal as frivolous. Once the record has been reviewed thoroughly, little appears to be gained by dismissing the appeal rather than deciding it on its merits." (Id. at p. 443).

We later considered in People v. Kelly (2006) 40 Cal.4th 106 the obligations of the appellate court in a criminal case when appointed counsel files a Wende brief, the defendant then personally files a letter or supplemental brief, but the court determines nonetheless there are no arguable issues. We held that the appellate court must address the defendant's contentions in a written opinion: "We conclude that a decision affirming the judgment in a Wende appeal disposes of a cause within the meaning of article VI, section 14, of the California Constitution, and therefore must be in writing with reasons stated.[*fn2 ] Because the defendant in a Wende appeal has a right to file supplemental contentions, the Court of Appeal must consider these contentions in the course of disposing of the cause. Therefore, to comply with the constitutional mandate, the opinion must reflect the defendant's contentions and the reasons that they fail." (Id. at pp. 109-110.) We reasoned that "when a Court of Appeal affirms a judgment in a Wende appeal in which the defendant has filed supplemental contentions, the appellate court necessarily must have considered and rejected those contentions. In accordance with the constitutional requirement of `reasons stated,' such an opinion must reflect the contentions and the reasons that they fail, just as the opinion would reflect those points if they were raised by counsel." (Id. at p. 120.)

In In re Sade C., supra, 13 Cal.4th at pages 981-982, however, we held that the procedures required in criminal appeals by our decision in Wende are not required in an appeal from an order of the juvenile court affecting parental rights. Sade C. arose from two appeals from indigent parents for whom counsel had been appointed. Appointed counsel in each case filed a brief that summarized the procedural and factual history of the case but raised no arguable issues and asked the court to " `independently review the entire record on appeal' " for any arguable issue. (Id. at pp. 962, 964, 965.) In each case, counsel had advised the parent that he or she could " `file a supplemental brief with the court within 30 days,' " but neither parent filed such a brief. (Id. at p. 962; see also ...


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