IN RE: ANGELA G. et al.

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

IN RE: ANGELA G. et al., Persons Coming Under the Juvenile Court Law. SAN FRANCISCO DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. PATRICIA W., Defendant and Appellant.

No. A066139.

Decided: March 23, 1995

Patricia L. Watkins, Burlingame, CA, for appellant. Louise H. Renne, City Atty., Burk E. Delventhal, Deputy City Atty., San Francisco, CA, for respondent.

Patricia W. appeals from orders terminating her parental rights to three children.  (Welf. & Inst.Code, § 366.26.)   Her court-appointed counsel has filed a brief which raises no issues and asks this court for an independent review of the entire record to determine whether there are any arguable issues.  (People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.)   Although there is precedent for Wende review in a dependent child proceeding (In re Brian B. (1983) 141 Cal.App.3d 397, 190 Cal.Rptr. 153), and in a termination of parental rights proceeding (In re Joyleaf W. (1984) 150 Cal.App.3d 865, 198 Cal.Rptr. 114), we question whether the right to Wende review in a criminal appeal applies to an appeal in a civil proceeding to terminate parental rights.   Appropriately, we requested and received supplemental briefing on this issue.

I. Wende Review Derives Directly from Constitutional Guarantees of Right to Counsel

 In a criminal case, the defendant's right to assistance of counsel derives from the Sixth and Fourteenth Amendments to the Constitution of the United States and article I, section 15 of the California Constitution.   Where an indigent defendant has a (statutory) right to appeal, he or she has a constitutional right, under the due process and equal protection of the law provisions of the Fourteenth Amendment, to court-appointed counsel (Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811), which includes a constitutional right to effective assistance of counsel on appeal.  (In re Smith (1970) 3 Cal.3d 192, 90 Cal.Rptr. 1, 474 P.2d 969.)

In Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493,  People v. Feggans (1967) 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21 and People v. Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, the courts explained the constitutional requirements of effective assistance of counsel on appeal where counsel has reviewed the record and found no reasonably meritorious issues to argue.   Basically, counsel must prepare a brief which contains a statement of the facts and “applicable law.”  (People v. Feggans, supra, 67 Cal.2d at p. 447, 62 Cal.Rptr. 419, 432 P.2d 21.)   The defendant must be given an opportunity to file a brief on his or her own.   In Anders, the United States Supreme Court said that the appellate court must then, “after a full examination of all the proceedings,” decide whether the appeal is frivolous.  (Anders v. California, supra, 386 U.S. at p. 744, 87 S.Ct. at p. 1400.)   In Feggans, the California Supreme Court said that the appellate court “must decide for itself whether the appeal is frivolous.”  (People v. Feggans, supra, 67 Cal.2d at p. 448, 62 Cal.Rptr. 419, 432 P.2d 21.)   Later, in Wende, the California Supreme Court rejected the argument that the Courts of Appeal are obligated to review the entire proceeding only if the defendant submits a brief on his or her own.   The Supreme Court held that “Anders requires the court [of Appeal] 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.   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, 158 Cal.Rptr. 839, 600 P.2d 1071.)

Wende review procedure in effect places the burden on the Courts of Appeal to determine whether court-appointed counsel, who has reviewed the record and found no meritorious issues to raise, has fulfilled the constitutional requirements of effective assistance of counsel on appeal.1  The irony is that if counsel raises an issue, even though meritless, the court is not obligated to review the record further to determine whether counsel has been ineffective by missing an issue that might result in a reversal or modification of the judgment.  (People v. Johnson (1981) 123 Cal.App.3d 106, 176 Cal.Rptr. 390.)   But if counsel raises no issue, the court must review the entire record to determine whether there are any arguable issues.2  Sixteen years' experience has proven true the prophecy of Wende 's79125945 dissenting Justice Clark:  “The majority today effectively designate our already overburdened Courts of Appeal as cocounsel to indigents convicted of crime on unassailable records.”  (People v. Wende, supra, 25 Cal.3d at p. 447, 158 Cal.Rptr. 839, 600 P.2d 1071.)3

The right to Anders/Wende review presupposes that the defendant has a constitutional right to effective assistance of counsel on appeal.   A fortiori, if there is no constitutional right to counsel, there is no right to Anders/ Wende review.  (Pennsylvania v. Finley (1987) 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539.)

II. The Right to Counsel in Termination of Parental Rights Cases does not Necessarily Derive from the Constitution

 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, 2158–2159, 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 appointment of counsel for an indigent parent in every termination of parental rights proceedings.  (Lassiter v. Department of Social Services, supra, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640.)   The due process right to appointed counsel in a dependent child or termination of parental rights proceeding depends on weighing the governmental interests against the private interests and the risk that the procedures used will lead to erroneous decisions.   (Id. at pp. 27–33, 101 S.Ct. at pp. 2159–2163.)   In Lassiter, the United States Supreme Court held that an indigent mother, who was serving a prison term for second degree murder but who was able to appear and represent herself at the termination of parental status hearing, did not have a constitutional right, under the due process clause of the Fourteenth Amendment, to appointed counsel at the termination of parental rights hearing.

A. The Right to Counsel is Statutory in California

In California, indigent parents in dependent child 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);  former Civ.Code, § 237.5, now Fam.Code, §§ 7860–7863;  Cal.Rules of Court, rule 1412(g) & (h);  see In re Jacqueline H. (1978) 21 Cal.3d 170, 174–178, 145 Cal.Rptr. 548, 577 P.2d 683, for legislative history.)   And effective January 1, 1995, section 317.5, subdivision (a) of the Welfare and Institutions Code provides:  “All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel.”

 Generally, section 300 dependent child proceedings do not 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;  In re Michael S., supra, 127 Cal.App.3d at pp. 363–364, 179 Cal.Rptr. 546.)   Thus, 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 186 Cal.App.3d 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.

B. Some Courts hold Right to Counsel Derives from Constitutional Due Process Tenets

 In other cases, however, the courts have held that the indigent parent's right to counsel in a dependent child proceeding is based on the constitutional right to due process, and thus the parent may raise the issue of ineffective assistance of counsel.  (In re Christina H. (1986) 182 Cal.App.3d 47, 227 Cal.Rptr. 41;  In re Emilye A. (1992) 9 Cal.App.4th 1695, 12 Cal.Rptr.2d 294.)   Similarly, while indigent parents in a termination of parental rights proceeding may not have an absolute due process right to counsel (Lassiter v. Department of Social Services, supra, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640), most state courts have held that, in the absence of statute, an indigent parent is entitled to appointed counsel as a matter of procedural due process when faced with termination of parental rights.  (Annot., Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights (1973) 80 A.L.R.3d 1141.)   Where the indigent parent's right to counsel is based on due process, the parent may raise the issue of ineffective assistance of counsel.  (In re Christina P. (1985) 175 Cal.App.3d 115, 128–129, 220 Cal.Rptr. 525;  In re Arturo A. (1992) 8 Cal.App.4th 229, 239–240, 10 Cal.Rptr.2d 131, holding that a parent is entitled to due process representation by counsel at any hearing which results in a referral to a section 366.26 selection and implementation hearing.)

C. The California Supreme Court Does Not Require Wende Review of Termination Cases.

 The California Supreme Court has not yet spoken on the issue of whether the appointment of counsel for indigent parents whose parental rights may be subject to termination is mandated by constitutional due process considerations.   Therefore, no higher authority requires us to conduct Wende review in termination of parental rights appeals when counsel files a brief raising no issues.   Only the Fourth Appellate District has so held, and it has justified its conclusion not upon constitutional principles but solely upon subjective public policy:  “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.”  (In re Joyleaf W., supra, 150 Cal.App.3d 865, 869, 198 Cal.Rptr. 114.)   Such an expansion of Wende review may have seemed a logical extension of its prior holding in In re Brian B., supra, 141 Cal.App.3d 397, 190 Cal.Rptr. 153, but its persuasiveness necessarily depends upon the rationale of Brian B.   We find the reasoning of Brian B. even less persuasive.   Finding a “legislative recognition of the strong fundamental rights involved when the People separate a child from his parents” from the Legislature's granting appointed counsel to parents in dependent children proceedings (see Welf. & Inst.Code, § 317), that court simply concluded:  “We find no valid reason to accord a parent in that situation a lesser degree of review than is accorded a criminal defendant.”  (In re Brian B., supra, 141 Cal.App.3d 397, 398, 190 Cal.Rptr. 153.)   Neither decision rested upon a constitutional analysis.   We are not persuaded that just because Wende review is accorded indigent criminal appellants in California, it is likewise required in civil dependency and termination of parental rights appeals.

We have already approvingly cited critiques of Wende review, seriously questioning whether such is even required by our constitutions.   We take judicial notice of how it has over the 16 years of its existence required Courts of Appeal to dedicate more judicial resources in those cases with the least merit.   We note that in these civil proceedings the parents are not the only individuals affected by delay in deciding appeals.   Paramount, of course, is the welfare of the child and his or her interest in securing stability in his or her life so he or she may enjoy the right to the pursuit of happiness.   Moreover, we must not forget the interests of those foster/prospective adoptive parents, who in many cases are the only parents many minors have ever known.   Trial courts are daily faced with a delicate balancing task between several competing interests.   The Legislature has recently enacted strict time lines for making these decisions, recognizing that the best interest of the child demands early determination of the child's future course of life.   Parents are entitled to counsel if they cannot afford counsel, and they now are specifically entitled to competent counsel.   Providing yet another layer of protection for indigent parents by mandating Wende review is neither mandated by the United States Constitution nor the California Constitution nor by our Supreme Court.   We, unlike our colleagues in San Diego, decline to hold that such is required either by the statutory granting of the right to counsel or by the fact it is enjoyed by criminal appellants.

D. Wende Review Is Unnecessary to Protect Parental Rights

Effective January 1, 1985, the Judicial Council adopted rule 76.5 of the California Rules of Court.   That rule directs each appellate court to adopt procedures for appointment of counsel in criminal appeals for indigent appellants who are not represented by the State Public Defender.4  The rule requires the Courts of Appeal to evaluate the qualifications of court-appointed attorneys and to match the attorney's qualifications to the demands of the case.   The rule also authorized the Courts of Appeal to contract with an administrator having substantial experience in handling criminal appeals to perform the functions of the rule.

Pursuant to rule 76.5, and with funding from the Legislature, the Judicial Council has provided each Court of Appeal with an appellate project administrator and experienced staff to administer the court-appointed counsel program for each court.5  Although rule 76.5 refers only to criminal appeals, the scope of the appellate project administrators has been expanded to include dependent child and termination of parental rights cases as well as other cases involving court-appointed counsel.   The duties of the appellate project administrators, who are under contract to the court, include the review of records to assist court-appointed counsel in identifying issues to brief.   If the court-appointed counsel can find no meritorious issue to raise and decides to file a Wende brief, an appellate project staff attorney reviews the record again to determine whether a Wende brief is appropriate.   Thus, by the time the Wende brief is filed in the Court of Appeal, the record in the case has been reviewed by the court-appointed counsel, who presumably is qualified to handle the case, and by an experienced attorney on the staff of the appellate project.6  In our opinion, further review by the court itself is both unnecessary to protect the parents and an improper allocation of public resources.

In this case, appellant is represented by experienced and competent counsel.   We have reviewed appellant's Wende brief which sets forth a statement of the case and facts with references to the record.   We agree with counsel that there are no meritorious issues to be argued.   We respectfully decline the invitation to conduct a Wende review herein.

The appeal from the orders terminating the parental rights of Patricia W. is dismissed.

FOOTNOTES

1.   This has resulted in a great burden to the Courts of Appeal.   For example, in the First Appellate District, Wende briefs are now filed in approximately 25 percent of all criminal and juvenile appeals.

2.   At least one court has remonstrated against this requirement, but to no avail.  (People v. Von Staich (1980) 101 Cal.App.3d 172, 177, 161 Cal.Rptr. 448 [“After the State Public Defender has said there are no arguable issues, our subsequent review in this case might be compared to touching up a Rembrandt, proofreading Shakespeare or editing a speech by Winston Churchill”].)

3.   It could also be observed that the need for independent review by the court is premised upon two equally faulty assumptions:  1) that trial courts routinely commit reversible error;  and 2) that appellate counsel are incapable of discovering such errors.

4.   The Legislature has directed the Judicial Council and each superior court to adopt rules of court regarding the appointment of competent counsel in child dependency proceedings on or before January 1, 1996.  (Welf. & Inst.Code, § 317.6.)   The rules must include the screening and appointment of competent counsel and minimum standards of experience and education necessary to qualify as competent counsel to represent a party in dependency proceedings, among other things.

5.   This has been done at considerable cost to taxpayers.   For example, in fiscal 1993–1994, the cost of the appellate projects statewide was approximately $11 million or nearly one-third of the total outlay for court-appointed counsel in the Courts of Appeal.

6.   Ironically, in California, those cases which are least meritorious receive the most legal and court attention.

ANDERSON, Presiding Justice.

PERLEY and REARDON, JJ., concur.