IN RE: SADE C., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Petitioner and Respondent, v. GREGORY C., Appellant.
IN RE: VANESSA R., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Petitioner and Respondent, v. EDWARD R., et al., Appellants.
In these consolidated appeals,1 we conclude that on appeal from orders under the Welfare & Institutions Code adjudicating dependency (§ 300) and terminating parental rights (§ 366.26), where counsel for an appellant files a brief raising no issues and the parents do not file a supplemental brief which raises issues, the reviewing court is not required to conduct its own independent review of the record. We thus take issue with prior appellate court decisions (In re Joyleaf W. (1984) 150 Cal.App.3d 865, 198 Cal.Rptr. 114; In re Brian B. (1983) 141 Cal.App.3d 397, 190 Cal.Rptr. 153) which have held that such an independent review is required, and we announce that, unless required by the Supreme Court or the Legislature to do otherwise, this court will henceforth decline to conduct such a review.
In case number B082230, Gregory C. appeals from the order of the juvenile court under Welfare & Institutions Code section 366.26,2 which terminated his parental rights over the minor Sade C. On January 8, 1991, Sade was declared a dependent child of the juvenile court under section 300, subdivision (b),3 and was removed from her parents' custody under section 361, subdivision (b)(1).4 On February 2, 1994, the court denied a motion filed by Gregory under section 388,5 then terminated Gregory's parental rights under section 366.26, subdivision (c)(1).
In case number B084043, Edward R. and Kris M., the parents of Vanessa R., appeal from the orders of the juvenile court under section 300, subdivisions (a), (e) and (i), and section 361, subdivision (b), declaring Vanessa a dependent child of the juvenile court and removing her from the physical custody of her parents. On January 27, 1994, a petition under section 300 was filed, alleging, among other matters, that Vanessa had sustained severe physical injuries while in the parents' custody. Vanessa was ordered detained pending a jurisdictional hearing. At that hearing, held on May 19, 1994, the parents waived the right to contest the allegations of the petition and submitted the matter on the basis of the social study report prepared by the Department of Children's Services (“DCS”). The petition was sustained and Vanessa was ordered to be removed from the parents' physical custody. Reunification services were ordered.
In each appeal, counsel for the parents raise no issues and present no arguments. The parents were notified by their attorneys that briefs raising no issues would be filed and that they had the right, within thirty days, to file supplemental briefs raising any issues which they wished presented to the court. However, we have not at any time received supplemental briefs or any other direct communication from the parents. Counsel for the parents request that we independently review the record, as is required in criminal appeals under People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (“Wende”). As we have said, we disagree with In re Joyleaf W., supra, 150 Cal.App.3d 865, 868, 198 Cal.Rptr. 114 and In re Brian B., supra, 141 Cal.App.3d 397, 398, 190 Cal.Rptr. 153, which hold that we must independently review the record. We thus decline to do so, and we therefore dismiss the appeals. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119–1120, 210 Cal.Rptr. 109.)
FACTUAL BACKGROUND 6
1. Sade C.
Sade C. was born prematurely on August 16, 1990, weighing less than four pounds and under the influence of cocaine. She was removed from her 17–year–old mother's custody four days later. Sade was adjudicated a dependent child of the juvenile court under section 300 on January 8, 1991 and, on that same date, was formally removed from her parents' physical custody under section 361. She was initially placed in a foster care facility, but was later released to the custody of her maternal great aunt, Bernice White.
Sade' mother, Lakeisha C., freely admitted that she used “primos,” a combination of marijuana and cocaine. Lakeisha was in custody in Eastlake Juvenile Hall during some of the proceedings respecting Sade. Lakeisha initially cooperated with reunification efforts, but ultimately did not follow through.
Lakeisha identified Gregory C. as Sade's father, but told her social worker he denied paternity. Gregory's whereabouts were unknown during the earliest stages of the juvenile court proceedings. However, he was located by March 21, 1991, and on that date, he underwent a tissue analysis which established a 99.5% probability that he was Sade's father. Despite these test results, Gregory continued to deny paternity and did not visit Sade.
As of January 7, 1992, a year after the original declaration of dependency, DCS had an address for Gregory, but he was not responding to DCS requests for appointments. Lakeisha's whereabouts were unknown. Accordingly, after a hearing held on January 7, the court found it was unlikely Sade could be released to her parents within the next six months, and a “selection and implementation” hearing under section 366.26 was calendared for April 7, 1992.
When the April 7, 1992, hearing was calendared, it was expected that Sade's great aunt, Ms. White, would become her legal guardian. However, the matter was taken off calendar when that plan changed to one for long-term foster care in Ms. White's home. Ultimately, Ms. White decided that she wished to adopt Sade.
As of January 7, 1993, two years after the initial declaration of dependency, Gregory was not responding to repeated communications by DCS regarding Sade, and his whereabouts were again unknown. However, on July 7, 1993, Gregory filed a petition under section 388 to modify the court's prior orders owing to a change of circumstances. In the petition, Gregory stated he was incarcerated in Chuckawalla Valley State Prison in Blythe, California, but his mother was willing and able to assume the care of Sade. He requested that Sade be placed with his mother.
On February 2, 1994, a hearing was held on Gregory's petition, and also on a petition to free Sade for adoption under section 366.26. Gregory and his mother, Dorothy C., testified that they wished Sade to be placed with her until Gregory was released from prison.7 Ms. White testified that Sade had lived with her for three years and was bonded to her, and that on her part, she loved Sade and wished to adopt her. Two social workers testified that it would be in Sade's best interest to be freed for adoption, probably by Ms. White. After the hearing, Gregory's petition under section 388 was denied, and Sade was freed for adoption under section 366.26.
This timely appeal by Gregory followed. Lakeisha did not appear at the 366.26 hearing and did not appeal from the resulting order.
2. Vanessa R.
On or about January 25, 1994, when Vanessa was four months of age, she was brought by her grandmother to a hospital emergency room and was treated for injuries which included a fractured clavicle, a fractured right arm, and bruises on both knees and under her right eye. The emergency room physician and Vanessa's regular pediatrician believed the injuries were caused by abuse. Vanessa was detained at the hospital, and on January 27, 1994, a petition was filed alleging that she was a person described in section 300, in that she had suffered serious non-accidental injury either intentionally inflicted by her parents (§ 300, subd. (a)) or as a result of their failure to protect her (§ 300, subd. (b)), was suffering serious emotional damage (§ 300, subd. (c)) and severe physical abuse (§ 300, subd. (e)), and had been subjected to cruelty by her parents (§ 300, subd. (i)).
At the time of her injuries, Vanessa was living with her mother, Kris M., in the home of Kris's mother and stepfather. Kris and Vanessa's father, Edward R., were described in the social worker's report as “adult teenagers.” Both were high school graduates. Kris received public assistance for Vanessa. Edward was employed at a Von's Market and lived with his parents.
Edward and Kris entered into a mediation agreement with DCS regarding Vanessa. Under the agreement, the parents did not contest the allegation in the section 300 petition that they had inflicted serious non-accidental physical injuries upon Vanessa. (§ 300, subd. (a).) DCS agreed to dismiss the allegation of physical injury owing to the parents' failure to protect Vanessa and the allegation of emotional damage. Allegations that Vanessa had suffered severe physical abuse and had been subjected to cruelty by the parents were submitted to the court for determination on the basis of the social services report. It was further agreed that Kris would move out of her parents' home, Vanessa would be placed in that home, and Kris and Edward would have reunification services and reasonable visitation. Finally, the parents agreed to participate in parenting classes and counselling. On May 9, 1994, the court sustained the petition under section 300, entered orders conforming to the mediation agreement, and found true the allegations of physical abuse and cruelty. Both parents filed timely notices of appeal.
In each appeal, no arguments are raised, and we are asked to review the record independently. (In re Joyleaf W., supra, 150 Cal.App.3d 865, 198 Cal.Rptr. 114; In re Brian B., supra, 141 Cal.App.3d 397, 190 Cal.Rptr. 153.)
1. In Most Appeals, The Reviewing Court Is Not Required To Make An Independent Study of the Record.
Generally, in civil cases and in criminal cases where counsel is retained, “[i]n a challenge to a judgment, it is incumbent upon an appellant to present argument and authority on each point made. Arguments not presented will generally not receive consideration.” (In re Marriage of Ananeh–Firempong (1990) 219 Cal.App.3d 272, 278, 268 Cal.Rptr. 83; quoting County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591, 159 Cal.Rptr. 1; see also People v. Placencia (1992) 9 Cal.App.4th 422, 428, 429, 11 Cal.Rptr.2d 727; Berger v. Godden, supra, 163 Cal.App.3d at p. 1117, fn. 2, 210 Cal.Rptr. 109; see generally 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 479, pp. 469–472.) In such cases, failure by the appellant to articulate a pertinent and intelligible legal argument may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal. (Berger v. Godden, supra, 163 Cal.App.3d at pp. 1119–1120, 210 Cal.Rptr. 109.)
A narrow and specific exception to the general rule applies in a direct first appeal as of right in a criminal case where the defendant is indigent and is represented by a court appointed attorney. Under Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, if appointed counsel in such a case submits a brief which raises no issues or describes the appeal as frivolous, an appellate court may not summarily dismiss the appeal, but must review the entire record to determine whether arguable issues exist. (25 Cal.3d at p. 441, 158 Cal.Rptr. 839, 600 P.2d 1071; see also People v. Coleman (1991) 53 Cal.3d 949, 951, 281 Cal.Rptr. 146, 809 P.2d 921.) In In re Brian B., supra, 141 Cal.App.3d 397, 190 Cal.Rptr. 153 (“Brian B. ”), another district of the Court of Appeal applied the procedures of Wende to juvenile dependency cases under section 300. (141 Cal.App.3d at pp. 398–399, 190 Cal.Rptr. 153.) In In re Joyleaf W., supra, 150 Cal.App.3d 865, 198 Cal.Rptr. 114 (“Joyleaf W.”), the same court extended Wende's requirements to proceedings for the termination of parental rights under section 232 of the Civil Code. (150 Cal.App.3d at p. 869, 198 Cal.Rptr. 114.) 8
Review by the Supreme court was not sought in Brian B. or Joyleaf W. and the Supreme Court has not at any time considered the question of whether the requirements of Wende do or should apply in dependency proceedings or proceedings to terminate parental rights. The holdings of Brian B. and Joyleaf W. are not binding on this court. (McCallum v. McCallum (1987) 190 Cal.App.3d 308, 315, fn. 4, 235 Cal.Rptr. 396; Los Angeles Police Protective League v. City of Los Angeles (1985) 163 Cal.App.3d 1141, 1147, 209 Cal.Rptr. 890; see generally 9 Witkin, Cal.Procedure, supra, Appeal, § 772, pp. 740–742.) We are therefore free to reexamine their validity in view of (1) this state's strong and recently reinforced public policy favoring the earliest possible resolution of the custody status of children 9 and (2) our concern that the delay that is inherent in the procedures required by Wende, together with the burdens imposed upon the courts by extension of those requirements to dependency adjudication and parental rights termination proceedings, are not justified by any substantial benefit to the parents or the children involved. After a thoughtful consideration of these issues, we are persuaded that the extension of Wende review to dependency proceedings is not required by the express language of Wende or its antecedent authorities, is not justified by the constitutional principles which underlie Wende, and is contrary to compelling public policies which infuse the juvenile court law. We therefore conclude that Brian B. and Joyleaf W. were wrongly decided.
2. The Review Procedures Required by Wende Arose From And Apply To Criminal Proceedings.
The Wende requirements were adopted by the California Supreme Court in response to a line of decisions by the United States Supreme Court relating to the appellate review of criminal cases. This line of cases began with Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 and culminated in Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (“Anders ”), the immediate forebear of Wende. The United States Supreme Court has made clear that the requirements established in Anders apply only in the first appeal as of right in criminal cases. (Pennsylvania v. Finley (1987) 481 U.S. 551, 554–555, 107 S.Ct. 1990, 1992–1993, 95 L.Ed.2d 539.)
b. Historical Background.
In Griffin v. Illinois, supra, the Supreme Court held that, if a state provides appellate review of criminal convictions as a matter of right, then the due process and equal protection clauses of the Fourteenth Amendment require the state to provide an indigent criminal appellant with a free transcript of his trial, or with an equally effective means of obtaining adequate appellate review of his conviction. (351 U.S. at p. 19, 76 S.Ct. at pp. 590–591.) The high court stated that “[i]n criminal trials, a State can no more discriminate on account of poverty than on account of religion, race, or color.” (Id. at p. 17, 76 S.Ct. at p. 590; italics added.)
Seven years after Griffin v. Illinois, supra, the Supreme Court decided, in Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, that the same principle which requires a free transcript also requires appointment of counsel in every criminal appeal where appointment of counsel is requested. (372 U.S. at p. 356, 83 S.Ct. at p. 816.) The defendant in Douglas challenged a California rule of procedure which then provided that appointment of counsel for an indigent criminal appellant was contingent upon a determination by the appellate court, after “an independent investigation of the record,” whether appointment of counsel was likely to be helpful to the appellant or the court. (372 U.S. at p. 355, 83 S.Ct. at p. 815.) 10
The United States Supreme Court found the California rule created an invidious discrimination based upon poverty, because an appellant who could pay for counsel would have the merits of his appeal passed upon “only after having the full benefit of written briefs and oral argument by counsel.” If an appellant could not pay for counsel, “the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided.” (Douglas v. California, supra, 372 U.S. at p. 356, 83 S.Ct. at p. 816.) The high court concluded that “[t]here is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.” (Id. at pp. 357–358, 83 S.Ct. at p. 817.)
Finally, in Anders, supra, 386 U.S. 738, 87 S.Ct. 1396, the high court held that principles of fair procedure and equal protection require an indigent criminal appellant to be afforded an attorney who acts as an advocate, not merely as amicus curiae. (386 U.S. at p. 744, 87 S.Ct. at p. 1400.) This means that appointed counsel may not merely review the record on appeal and then, if the appeal is found meritless, so inform the court by letter, as counsel had done in Anders. Rather, counsel must support the indigent client's appeal to the best of counsel's ability. (Ibid.) If counsel finds the case to be frivolous, after a conscientious examination, counsel should so advise the court and request leave to withdraw. However, the request must be accompanied by a brief, referring to anything in the record which might arguably support the appeal. A copy of the brief must be furnished to the defendant, and the defendant must then have an opportunity to raise any points the defendant chooses. (Ibid.)
Once the defendant has this opportunity, “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.” (Anders, supra, 386 U.S. at p. 744, 87 S.Ct. at p. 1400.)
In Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, the California Supreme Court determined that, upon the filing of a no-merit brief by appointed counsel, an appellate court has an obligation under Anders to conduct an independent review of the record, whether or not the appellant has personally filed a brief. “We conclude that Anders 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. 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.” (25 Cal.3d at pp. 441–442, 158 Cal.Rptr. 839, 600 P.2d 1071.) 11
c. Anders and Wende Do Not Require Independent Appellate Review In Non–Criminal Cases.
Brian B. was the first case of which we are aware which ruled that Wende's requirements apply in a non-criminal context.12 Joyleaf W., decided by the same court, was the second one.13 The rationale for this extension of Wende's requirements was as follows. In proceedings to declare children dependents of the juvenile court or to free a child for adoption, indigent parents have a statutory right to court-appointed counsel on appeal, just as indigent criminal appellants have that right under the constitution. The California statutes affording parents a right to counsel in such proceedings constitute “legislative recognition of the fundamental rights involved when the state seeks to separate parents from their child.” (In re Joyleaf W., supra, 150 Cal.App.3d at p. 868, 198 Cal.Rptr. 114; see also In re Brian B., supra, 141 Cal.App.3d at p. 398, 190 Cal.Rptr. 153.) Therefore, parents facing such proceedings are entitled to the same appellate review afforded a criminal defendant. (In re Joyleaf W., supra, 150 Cal.App.3d at p. 869, 198 Cal.Rptr. 114; In re Brian B., supra, 141 Cal.App.3d at p. 398, 190 Cal.Rptr. 153.) 14
There can be no doubt that parents' right to the companionship, care, custody and management of their children is a fundamental interest, which “undeniably warrants deference and, absent a powerful countervailing interest, protection.” (Stanley v. Illinois (1972) 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551.) Inferrably, the Legislature provided for a right to counsel for indigents in dependency proceedings in order to afford adequate protection to them. (See §§ 317 and 366.26, subd. (f).) It does not necessarily follow, however, that there is a right to Wende review in such cases. Neither is it necessarily true that Wende procedures are required simply because there is a right to appointed counsel.
In Pennsylvania v. Finley, supra, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539, the United States Supreme Court declined to expand the scope of Anders beyond first appeals as of right in criminal cases. The high court explained in Finley that “Anders did not set down an independent constitutional command that all lawyers, in all proceedings, must follow [the] particular procedures [required therein].” (481 U.S. at p. 554–555, 107 S.Ct. at p. 1993.) Indeed, in Finley, the court held that the Anders procedures are not constitutionally required even in all proceedings where review is sought of a criminal conviction. (481 U.S. at p. 556, 107 S.Ct. at pp. 1993–1994.)
In Finley, the defendant was convicted of murder, and the conviction was affirmed on appeal. The defendant then filed a petition for habeas corpus, and counsel was appointed for her under a Pennsylvania law which entitled her to appointed counsel in habeas corpus proceedings. After reviewing the record, counsel informed the court he had found no potentially meritorious issues and requested leave to withdraw. The trial court reviewed the record, agreed there were no meritorious issues and dismissed the petition. (Pennsylvania v. Finley, supra, 481 U.S. at pp. 553–554, 107 S.Ct. at pp. 1992–1993.) The defendant contended she was entitled to have her attorney file a brief in the form required by Anders. (Ibid.)
The United States Supreme Court rejected that contention, holding that neither the federal constitutional right to counsel nor the requirement that counsel must file an Anders brief applied in collateral postconviction proceedings. (Pennsylvania v. Finley, supra, 481 U.S. at pp. 554–555, 107 S.Ct. at pp. 1992–1993.) States have no obligation to provide an avenue for collateral postconviction relief, and when such an avenue is provided, “the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.” (Id. at p. 557, 107 S.Ct. at p. 1994.) This is in contrast to the principle which applies when states afford a right of first appeal of a conviction. (See Douglas v. California, supra, 372 U.S. at p. 355, 83 S.Ct. at pp. 815–816.)
The difference in the governing principles results from a fundamental difference in the nature of the proceedings. The court noted in Finley that Ross v. Moffitt (1974) 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341, decided the federal Constitution does not require appointment of counsel on a discretionary direct appeal. (Pennsylvania v. Finley, supra, 481 U.S. at pp. 555–556, 107 S.Ct. at pp. 1993–1994.) The Finley court then observed that a collateral attack on a conviction “is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature.” (Id. at pp. 556–557, 107 S.Ct. at p. 1994.) The Supreme Court reasoned that, because collateral postconviction review is civil in nature, there is no federal constitutional right to counsel and no right to Anders procedures. (Id. at p. 557, 107 S.Ct. at p. 1994.)
It was the absence of a federal constitutional right to counsel that compelled the result in Finley. The Supreme Court observed that Finley's right to counsel on collateral review of her conviction was not the command of the federal constitution, but the result of a decision by the state of Pennsylvania. (481 U.S. at p. 556, 107 S.Ct. at pp. 1993–1994.) The Supreme Court rejected the argument that Anders procedures should be applied to a state-created right to counsel merely because they are applied to the federal constitutional right to counsel on first appeal that was established in Douglas v. California, supra 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. (Id. at p. 556, 107 S.Ct. at pp. 1993–1994.) Rather, the Supreme Court concluded that Pennsylvania had “made a valid choice to give prisoners the assistance of counsel without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position—at trial and on first appeal as of right. In this context, the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders.” (Id. at p. 559, 107 S.Ct. at pp. 1995–1996.) In sum, the court ruled in Finley that Anders procedures constitute “a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.” (Id. at p. 555, 107 S.Ct. at p. 1993; italics added.) 15
There is no “previously established” federal constitutional right to counsel in proceedings affecting parental rights. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31–32, 101 S.Ct. 2153, 2161–2162, 68 L.Ed.2d 640; hereafter “Lassiter.”) In Lassiter, a mother's parental rights over her infant son were terminated after a hearing at which the mother had not retained counsel, but did not aver she was indigent, and thus counsel was not appointed for her. (452 U.S. at pp. 21–24, 101 S.Ct. at pp. 2156–2158.) On appeal, the mother contended she was indigent and thus constitutionally entitled to representation by counsel. (Id. at p. 24, 101 S.Ct. at p. 2158.) The Supreme Court disagreed. The court held that an indigent's absolute constitutional right to appointed counsel exists only where the litigant may lose his physical liberty if he loses the litigation. (452 U.S. 18, at p. 25, 101 S.Ct. 2153, at pp. 2158–2159.) In other cases, including cases affecting parental rights, there is no presumption that a federal constitutional right to appointed counsel exists. Instead, the question of whether fundamental fairness requires appointment of counsel is determined by assessing the interests at stake in the particular proceeding or category of proceedings. (Id. at pp. 26–27, 101 S.Ct. at pp. 2159–2160.) The court found that under the specific facts which existed in Lassiter appointment of counsel was not constitutionally required. (Id. at p. 33, 101 S.Ct. at pp. 2162–2163.)
Read together, Finley, supra, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539, and Lassiter, supra, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640, dispose of any claim that Anders, in and of itself, requires that its procedures be used in any context other than a direct first appeal as of right in a criminal case or other case in which the individual's physical liberty is at stake. The existence of a state-created right to counsel in other contexts does not imply, much less establish, a right to Anders procedures. (Pennsylvania v. Finley, supra, 481 U.S. at p. 559, 107 S.Ct. at pp. 1995–1996.) Like the right to counsel that the state of Pennsylvania afforded the defendant in Finley, supra, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539, the automatic right to counsel that is afforded in California proceedings affecting parental rights does not arise from the federal constitution. (Lassiter, supra 452 U.S. at pp. 31–32, 101 S.Ct. at pp. 2161–2162; In re Angela R. (1989) 212 Cal.App.3d 257, 276, 260 Cal.Rptr. 612.) Consequently, it does not entail a right to Anders procedures. (Pennsylvania v. Finley, supra, 481 U.S. at p. 555, 107 S.Ct. at p. 1993.) It follows that Wende's requirements likewise do not apply beyond the criminal arena, for the requirements imposed by Wende are based entirely upon those stated in Anders. (Wende, supra, 25 Cal.3d at pp. 441–442, 158 Cal.Rptr. 839, 600 P.2d 1071.)
However, the question then arises as to whether general principles of equal protection and due process under the federal or the state constitution, independent of Anders and Wende, might create a right to Wende-style review in proceedings which affect parental rights. As we now explain, that question must be answered in the negative.
3. General Constitutional Principles Do Not Compel Wende Review In Proceedings Affecting Parental Rights.
a. Equal Protection.
The particular equal protection concerns which gave rise to Griffin v. Illinois, supra, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, Douglas v. California, supra, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and finally, Anders and Wende, arose only in the context of criminal appeals. (See, e.g., Anders, supra, 386 U.S. at pp. 741–742, 87 S.Ct. at pp. 1398–1399; Douglas v. California, supra, 372 U.S. at pp. 356–357, 83 S.Ct. at pp. 816–817; Griffin v. Illinois, supra, 351 U.S. at pp. 16–19, 76 S.Ct. at 589–591.) Generally, equal protection does not impose upon the state a duty in every proceeding affecting important rights “to duplicate the legal arsenal that may be privately retained by a [litigant] in a continuing effort to reverse [a judgment],” but only imposes the duty “ ‘to assure the indigent [litigant] an adequate opportunity to present his claims fairly in the context of the State's appellate process.’ ” (Pennsylvania v. Finley, supra, 481 U.S. at p. 556, 107 S.Ct. at p. 1994, quoting Ross v. Moffitt, supra 417 U.S. 600, 616, 94 S.Ct. 2437, 2447; Griffin v. Illinois, supra, 351 U.S. at pp. 17–20, 76 S.Ct. at pp. 589–591.) In contexts other than criminal trials or a criminal defendant's first appeal as of right, the courts have acceded to the unavoidable and do not purport to prohibit distinctions between poor and rich, as long as an “invidious discrimination,” amounting to a denial of due process, does not result. (Douglas v. California, supra, 372 U.S. at p. 356, 83 S.Ct. at p. 816; T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 783, 94 Cal.Rptr. 813, 484 P.2d 981.)
b. Due Process.
The parents contend that, because California affords an appeal as of right in dependency and termination of parental rights proceedings, due process entitles an appellant to Wende-style procedures on appeal if appellate counsel raises no issues. In support of this proposition, the parents cite Evitts v. Lucey, supra, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821, in which the United States Supreme Court decided a criminal appellant has a due process right to the effective assistance counsel on his first appeal as of right. (469 U.S. at p. 396, 105 S.Ct. at p. 836.) In Evitts, the high court reiterated its earlier holdings that, although the Constitution does not require states to grant appeals as of right to criminal defendants, the Constitution does require that, if an appeal is granted as of right, the procedures in determining each appeal must comport with due process and equal protection. (Id. at p. 393, 105 S.Ct. at p. 834.) Later in its opinion, the court stated, more generally, that “when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution—and, in particular, in accord with the Due Process Clause.” (Id. at p. 401, 105 S.Ct. at p. 839.) The Supreme Court concluded that a first appeal as of right in a criminal case is not adjudicated in accord with due process if the appellant does not have the effective assistance of an attorney. (Id. at p. 396, 105 S.Ct. at p. 836.)
Contrary to the parents' contention, it does not follow from the holding or the reasoning in Evitts v. Lucey, supra, that all of the procedures required in a first appeal as of right in a criminal case are required by due process principles in every kind of case in which an appeal as of right is afforded.16 Responding to a similar argument in Pennsylvania v. Finley, supra, the Supreme Court emphatically rejected the premise that when a state chooses to offer help to a class of litigants—in that case, prisoners seeking collateral relief from convictions—the federal constitution dictates the exact form the help must take. (481 U.S. at p. 559, 107 S.Ct. at p. 1995.) 17 When the high court said in Evitts that, in taking action that is otherwise discretionary, a state must nevertheless comply with the Due Process Clause, the court did not enunciate specific due process requirements for any field of state action other than the field specifically at issue in Evitts, criminal appeals. The court had previously explained in Lassiter, supra, that “due process” cannot be precisely defined, but merely expresses the requirement of “ ‘fundamental fairness,’ a requirement whose meaning can be as opaque as its importance is lofty.” (452 U.S. at p. 24, 101 S.Ct. at p. 2158.) Defining the requirements of due process entails a determination of what is fundamentally fair in a particular situation or category of situations. This is done by considering relevant precedents and then assessing the interests that are at stake. (Id. p. 25, 101 S.Ct. at pp. 2158–2159.)
In non-criminal proceedings, the courts determine the requirements of the federal Due Process Clause by weighing the three well-known factors which were propounded in Mathews v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18: (1) the private interest at stake, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (Mathews v. Eldridge, supra, 424 U.S. at p. 335, 96 S.Ct. at p. 903. See also Lassiter, supra, 452 U.S. at p. 27, 101 S.Ct. at p. 2159, citing 424 U.S. at p. 335, 96 S.Ct. at p. 903, accord Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 251–253, 19 Cal.Rptr.2d 698, 851 P.2d 1307.) In determining the requirements of due process under the California Constitution, we weigh the above factors and add into the balance the dignity interest of individuals in being informed of the nature, grounds and consequences of the action and being able to present their side of the story. (In re Malinda S. (1990) 51 Cal.3d 368, 383, 272 Cal.Rptr. 787, 795 P.2d 1244; In re Jackson (1987) 43 Cal.3d 501, 511, 233 Cal.Rptr. 911, 731 P.2d 36; In re Walter E. (1992) 13 Cal.App.4th 125, 137, 17 Cal.Rptr.2d 386.)
In balancing the relevant factors to determine just what due process requires in proceedings affecting parental rights, the United States and California Supreme Courts have identified three principal and sometimes competing concerns:
(1) Parents have a fundamental and compelling liberty interest in their relationship with their children and a correspondingly great interest in an accurate and just decision on the issue of its restriction or termination. (Lassiter, supra, 452 U.S. at pp. 27, 31, 101 S.Ct. at pp. 2159–60, 2161–62; In Re Angelia P. (1981) 28 Cal.3d 908, 916–919, 171 Cal.Rptr. 637, 623 P.2d 198.)
(2) The state shares the parents' interest in an accurate and just decision, and has in addition a compelling interest in protecting the child. (Santosky v. Kramer (1982) 455 U.S. 745, 766–767, 102 S.Ct. 1388, 1401–1402, 71 L.Ed.2d 599; Lassiter, supra, 452 U.S. at pp. 27–28, 101 S.Ct. at pp. 2159–2160.) The state also has an interest in proceeding as economically and as informally as is consistent with fairness. (Id. at p. 28, 101 S.Ct. at p. 2160.) Thus, the courts legitimately include in the balance of interests the fiscal and administrative burdens that are entailed by any procedural protections to which it is claimed parents are entitled. (Santosky v. Kramer, supra, 455 U.S. at p. 766, 102 S.Ct. at pp. 1401–1402; Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 264, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)
(3) The third party in such proceedings, the child, has a fundamental interest in belonging to a family, and consequently shares the parent's interest in assuring that family ties are not erroneously torn apart. (Santosky v. Kramer, supra, 455 U.S. at p. 765, 102 S.Ct. at p. 1401; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 848, 4 Cal.Rptr.2d 615, 823 P.2d 1216; In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) At the same time, children must be protected from abuse and neglect perpetrated by those who should be their protectors. Children who are abused or neglected have a clear and compelling right to a new placement that is stable and permanent and allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H., supra, 5 Cal.4th at p. 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) The welfare of the child is, of course, the paramount concern of the juvenile court law. (In re Malinda S., supra, 51 Cal.3d at p. 384, 272 Cal.Rptr. 787, 795 P.2d 1244; In re Kerry O. (1989) 210 Cal.App.3d 326, 333, 258 Cal.Rptr. 448.)
After balancing these sometimes competing interests, and taking into account the ever present concern of the risk of error, the courts have concluded that the extreme procedural solicitude that is afforded a criminal defendant need not be provided to parents in dependency adjudication and parental rights termination proceedings. For example, the courts have determined that: (1) the “beyond a reasonable doubt” standard of proof is not needed in parental rights proceedings (Santosky v. Kramer, supra, 455 U.S. at p. 769, 102 S.Ct. at p. 1403; In re Angelia P., supra, 28 Cal.3d at p. 919, 171 Cal.Rptr. 637, 623 P.2d 198); (2) compromises in the right of confrontation and cross-examination, which would not be permissible in criminal proceedings, are appropriate and necessary in dependency proceedings(In re Malinda S., supra, 51 Cal.3d at pp. 384–385, 272 Cal.Rptr. 787, 795 P.2d 1244; In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1086–1089, 10 Cal.Rptr.2d 813); and (3) the constitutional right to counsel does not automatically exist in such proceedings, but must be determined on a case-by-case basis, based upon a particularized weighing of interests under the specific facts of each case (Lassiter, supra, 452 U.S. at p. 31, 101 S.Ct. at pp. 2161–2162; In re Malinda S., supra, 51 Cal.3d at p. 384, 272 Cal.Rptr. 787, 795 P.2d 1244; In re Angela R., supra, 212 Cal.App.3d at p. 276, 260 Cal.Rptr. 612.)
In determining whether there is a right to Wende-style review in dependency and parental rights termination proceedings, we conclude that the balance weighs even more strongly against such review than it weighs against an automatic, constitutional right to counsel in all dependency and termination of parental rights cases (Lassiter, supra, 452 U.S. at p. 31, 101 S.Ct. at pp. 2161–2162), a constitutionally based bar against reliance upon social worker report hearsay (In re Malinda S., supra, 51 Cal.3d at pp. 384–385, 272 Cal.Rptr. 787, 795 P.2d 1244), and imposition of the reasonable doubt burden of proof (cf. Santosky v. Kramer, supra, 455 U.S. at p. 769, 102 S.Ct. at p. 1403). This is so, not because the natural bond between parents and their children is deemed a less fundamental or compelling interest than the interest in physical liberty that is at stake in criminal proceedings. It is so, because children have an urgent need and a corresponding right to have their own family made suitable to care for them or, if that cannot be, to be placed in a caring and permanent home elsewhere as speedily as is consistent with fairness to the parents. A requirement of Wende review on appeal in dependency and termination of parental rights proceedings entails significant delay in achieving both of these goals. As our Supreme Court has observed, “childhood does not wait for the parent to become adequate.” (In re Marilyn H., supra, 5 Cal.4th at p. 310, 19 Cal.Rptr.2d 544, 851 P.2d 826.) Neither can a child's needs for stability, guidance and love be held in abeyance while inadequate parents avail themselves of all conceivable procedural hurdles that will impede the state from conclusively proving them so. Thus, the delay that is entailed in performing a Wende review is tolerable only if there is both (1) a serious risk of parental rights being erroneously restricted or terminated if such review is not performed, and (2) a substantial likelihood that Wende reviews will avoid this risk. We do not believe that such a risk exists in dependency and termination of parental rights cases.
c. Substantial Procedural Safeguards Negate The Need For Independent Judicial Review.
As our Supreme Court has observed, “Significant safeguards have been built into the current dependency scheme. They include representation by counsel to assist parents at every stage of the proceedings (§ 317), notice of all hearings and rights (§§ 307.4, 308, 311, 316, 335–336, 364–366.23), clear and convincing evidence for removal from custody (§ 361, subd. (b)), reunification services (§ 361.5), and review hearings at which services and progress are reviewed (§§ 366.21, 366.22).” (In re Marilyn H., supra, 5 Cal.4th at pp. 307–308, 19 Cal.Rptr.2d 544, 851 P.2d 826.) In view of these safeguards, we do not believe that a serious risk of error remains in the proceedings after all of the built-in safeguards have been utilized at the trial level and, in addition, the record of the proceedings has been scrutinized by counsel on appeal, and counsel has found no basis for reversal. Given these circumstances, the performance of Wende reviews by the court in dependency and parental rights termination cases is of only marginal value in reducing any risk of error.
Finally, we particularly note and endorse the views of Justice Stewart, who, joined by Justices Black and Harlan, dissented in Anders and characterized the requirement imposed by that decision as “quixotic.” Justice Stewart expressed considerable dismay with the majority of his colleagues who felt that a court could not constitutionally accept appointed counsel's “no-merit” evaluation of a criminal appeal. We believe his remarks are equally appropriate in the context of a non-criminal indigent appeal. He stated that the majority's position could be explained “only upon the cynical assumption that an appointed lawyer's professional representation to an appellate court in a ‘no-merit’ letter is not to be trusted. That is an assumption to which I cannot subscribe. I cannot believe that lawyers appointed to represent indigents are so likely to be lacking in diligence, competence, or professional honesty․” (386 U.S. at pp. 746–747, 87 S.Ct. at pp. 1401, dis. opn. of Stewart, J.) Amen.
We are, of course, required to follow the commands of Wende in criminal cases, regardless of our own views. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) 18 However, the state and federal high courts have heretofore mandated the procedures of Anders and Wende only in criminal cases. Those procedures are not required in most civil cases and, in particular, they have not been required by the Supreme Court in indigent appeals from orders adjudicating dependency or terminating parental rights.19 Furthermore, we are convinced that the value of a Wende review in such cases is even less than in criminal cases. For all of the reasons set forth herein, we can find no justification for extending the Anders– Wende procedures beyond their criminal context. Therefore, we decline to conduct independent Wende review procedures in matters affecting parental rights.
In these two cases, counsel was appointed for Gregory C. and for the parents of Vanessa R. as required by sections 317 and 395. Counsel in both cases filed briefs in which no issues were raised and notified the parents of their right to file briefs in pro per within thirty days. We did not hear from the parents within thirty days from the filing of counsels' briefs or at any time thereafter. We are asked to independently review the records for any arguable appellate issues.
We decline to review the records for that purpose. No issues having been presented in either case by either the parents or their counsel, we will dismiss the appeals.
The appeal from the judgment terminating the parental rights of Gregory C. is dismissed. The appeal from the order declaring Vanessa R. a dependent child of the juvenile court is dismissed.
1. For reasons of judicial economy and efficiency, we have, on our own motion, consolidated these two otherwise unrelated appeals in order to address the issue of mandatory independent judicial review in the context of the two most common circumstances presented in the appellate review of dependency cases: (1) termination of parental rights and (2) dependency adjudication.We filed our original opinion in this matter on March 2, 1995. We thereafter granted rehearing at the request of the appellants on March 16, 1995. After rehearing we have determined to refile our original opinion with some modifications addressing additional arguments raised by the parties and amici curiae. We note that on March 23, 1995, the First District filed its opinion in In re Angela G., 33 Cal.App.4th 398, 39 Cal.Rptr.2d 308, in which the court reached the same conclusions as we did in our original opinion on much the same reasoning. On June 15, 1995, the Supreme Court granted review in In re Angela G.
2. Unless otherwise indicated, all further statutory references are to the Welfare & Institutions Code. Section 366.26 provides in pertinent part as follows: “(a) This section applies to minors who are adjudged dependent children of the juvenile court pursuant to subdivision (c) of section 360 on or after January 1, 1989. The procedures specified herein are the exclusive procedures for conducting these hearings; ․ [¶] (b) At the hearing, which shall be held in juvenile court for all minors who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these minors, shall review the report as specified in Section 361.5, 366.21, or 366.22, shall indicate that the court has read and considered it, shall receive other evidence that the parties present, and then shall do one of the following: [¶] (1) Permanently sever the rights of the parent or parents and order that the child be placed for adoption and, upon the filing of a petition for adoption in the juvenile court, order that a hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted․ [¶] In choosing among the above alternatives the court shall proceed pursuant to subdivision (c). [¶] (c) The court shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted. If the court so determines, the findings pursuant to ․ Section 366.21 or 366.22 that a minor cannot or should not be returned to his or her parent or guardian, shall then constitute a sufficient basis for termination of parental rights․”
3. In parts pertinent to the two cases at bench, Section 300 provides as follows: “Any minor who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: (a) The minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm inflicted nonaccidentally upon the minor by the minor's parent or guardian․ [¶] (b) The minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the minor ․ or by the inability of the parent or guardian to provide regular care for the minor due to the parent's or guardian's mental illness, developmental disability, or substance abuse․ [¶] ․ [¶] (e) The minor is under the age of five and has suffered severe physical abuse by a parent․ [¶] ․ [¶] (i) The minor has been subjected to an act or acts of cruelty by the parent or guardian or a member of his or her household․”
4. Section 361, subdivision (b) provides: “(b) No dependent child shall be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of any of the following: [¶] (1) There is a substantial danger to the physical health of the minor or would be if the minor was returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents' or guardians' physical custody.”
5. Section 388, in pertinent part, provides: “Any parent ․ may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court ․ for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”
6. A Wende brief was filed on behalf of each of these indigent appellants setting forth the factual matters described in this opinion. Each brief requested this court to independently review the record, thus implicitly asserting that the record, in the opinion of counsel, had disclosed no appealable issues. We recite a summary of those facts to give context to our discussion of the requirement of an independent judicial review upon receipt of such a brief in a dependency case.
7. However, after all the witnesses had testified, Ms. White testified on rebuttal that, during a recess, she overheard Dorothy telling Gregory that she could not care for Sade, because Sade had serious medical problems. Gregory answered “Oh, no, don't say that․ because when you get in court, it will be all over with.” Dorothy was then recalled and testified that she was not told what to say in her original testimony and she understood the ramifications of her testimony.
8. Commencing January 1, 1989, section 366.26 now provides the exclusive means of terminating parental rights respecting dependent children of the juvenile court. Upon enactment of the Family Code effective January 1, 1994, Civil Code section 232 was repealed, and Welfare & Institutions Code section 366.26, together with Family Code sections 8604, 8605, 8606 and 8700 became the exclusive provisions for terminating parental rights respecting such minors. Principles which governed the application of section 232 continue to govern the application of section 366.26.
9. Senate Bill No. 243, which substantially modified the juvenile court system, was enacted in 1987 and was largely motivated by the perceived urgent need to eliminate lengthy delays which regularly occurred under the old system. (See discussion in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 246–247, 19 Cal.Rptr.2d 698, 851 P.2d 1307.) Subsequent amendments which have endeavored to further streamline juvenile court proceedings have included provisions specifically relating to appellate review. Appeals from juvenile court orders have always had statutory priority over all other appeals. (§ 395.) In addition, the Judicial Council recently adopted Rule 39.1A, effective January 1, 1994, which established specific requirements for expediting appeals from orders terminating parental rights. These requirements include expedited preparation of the record and a fast-track briefing schedule which allows determination of such cases within 250 days of the filing of the notice of appeal. (See In re Baby Boy L. (1994) 24 Cal.App.4th 596, 612, 29 Cal.Rptr.2d 654.) Finally, effective January 1, 1995, section 366.26, subdivision (l) has been enacted. (Stats.1994, ch. 1007.) This subdivision provides for expedited review of orders under section 366.26 and of orders authorizing a hearing under that section. Under subdivision (l ), an order authorizing a hearing under section 366.26 is reviewable by writ, and if review is not sought by a writ petition which “substantively address[es] the specific issues challenged,” such an order is not reviewable. (§ 366.26, subds. (l )(1) and (l )(2).) The new subdivision also requires the Judicial Council to adopt further rules for expediting review of termination orders. (§ 366.26, subd. (l )(3).) Subdivision (l )(4)(A) provides that the intent of subdivision (l ) is to “[m]ake every reasonable attempt to achieve a substantive and meritorious review by the appellate court within the time specified in Sections 366.21 and 366.22 for holding a hearing pursuant to this section,” that is, within 18 months from the time the child was removed from his parents' custody. (§ 366.21, subd. (g)(1); § 366.22, subd. (a).)
10. The rejected California rule was derived from the opinion of the California Supreme Court in People v. Hyde (1958) 51 Cal.2d 152, 331 P.2d 42. In that case, the appeal was originally assigned to this division of the Second District of the Court of Appeal. When the appellant requested appointment of counsel, the court referred the request to the Los Angeles County Bar Association's Committee on Criminal Appeals, which in turn referred it to an attorney—apparently an unpaid volunteer. The attorney examined the record and advised the court that it disclosed no meritorious grounds of appeal. The defendant filed a brief in propria persona. This court then examined the record and affirmed the judgment. (51 Cal.2d at p. 154, 331 P.2d 42.) The California Supreme Court ordered a hearing on its own motion and held that, upon application of an indigent defendant who has been convicted of a crime, an appellate court should either (1) immediately appoint counsel, or (2) proceed under the rule which the United States Supreme Court later found unconstitutional in Douglas. (Ibid.)
11. In so holding, the court acknowledged that under the new rule, counsel may be able to secure a more complete review for an indigent client by not raising issues than by raising them. However, the court expressed confidence that counsel would not abandon their professional responsibility to conscientiously review the record and raise all arguable issues. In any event, the court concluded that fear of such consequences could not alter the need for compliance with Anders. (25 Cal.3d at p. 442, 158 Cal.Rptr. 839, 600 P.2d 1071.)
12. However, in so holding the Brian B. court cited In re Jesse H. (1981) 126 Cal.App.3d 1048, 178 Cal.Rptr. 205, in which the reviewing court had in fact utilized a Wende review, thus implicitly recognizing its availability in dependency proceedings. (In Re Brian B., supra, 141 Cal.App.3d at p. 398, 190 Cal.Rptr. 153, citing 126 Cal.App.3d at p. 1049, 178 Cal.Rptr. 205.)
13. Following Brian B. and Joyleaf W., the Courts of Appeal have applied the procedures of Wende in other non-criminal contexts, including conservatorship proceedings (Conservatorship of Besoyan (1986) 181 Cal.App.3d 34, 38, 226 Cal.Rptr. 196) and paternity actions (County of Madera v. Jacobson (1987) 194 Cal.App.3d 569, 573, 239 Cal.Rptr. 602).
14. The specific language of Brian B. was that “[w]e find no valid reason to accord a parent in [dependency proceedings] a lesser degree of review than is accorded a criminal defendant.” (141 Cal.App.3d at p. 398, 190 Cal.Rptr. 153.)
15. Finley is one of five decisions in which the high court has elaborated upon the requirements of Anders. In Jones v. Barnes (1983) 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987, the court held that appointed appellate counsel has no duty under Anders to raise every nonfrivolous issue requested by the defendant. (463 U.S. at p. 753, 103 S.Ct. at pp. 3313–3314.) In Evitts v. Lucey (1985) 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821, in the course of a summary of its previous cases on the procedural rights of indigent criminal appellants, the court characterized the holding of Anders by saying it required counsel to “play the role of an active advocate,” rather than a mere friend of the court. (469 U.S. at p. 394, 105 S.Ct. at pp. 834–835.) In McCoy v. Court of Appeals (1988) 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440, the court held due process was not violated by a Wisconsin appellate rule which required counsel, when filing an “Anders ” brief, to include a discussion of the reasons counsel found the appeal frivolous. (486 U.S. at p. 444, 108 S.Ct. at pp. 1904–1905.)In the above cases, the focus of attention was upon counsel's duties under Anders. In Penson v. Ohio (1988) 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300, the court directed its attention to the obligations of the court. In Penson, appointed counsel, in violation of Anders, filed a motion to withdraw, based only upon a conclusionary statement that he found the appeal to be frivolous. Without reviewing the record, the Ohio Court of Appeals allowed counsel to withdraw. (488 U.S. at pp. 77–78, 109 S.Ct. at pp. 348–349.) However, in the course of determining the appeals of two co-defendants, the reviewing court concluded there were several issues which potentially entitled Penson to a reversal of his conviction. Ultimately, without appointing substitute counsel for Penson, the Court of Appeals reversed one count of his conviction and affirmed several remaining counts. (Id. at p. 79, 109 S.Ct. at p. 349.) The United States Supreme Court held the Ohio court prejudicially erred by (1) allowing counsel to withdraw before satisfying itself that counsel had diligently reviewed the record and had correctly determined that the appeal was frivolous (id. at pp. 81–83, 109 S.Ct. at pp. 350–351) and (2) determining the appeal without appointing substitute counsel once the appeal was found not to be wholly frivolous. (Id. at pp. 83–85, 109 S.Ct. at pp. 351–353.) The Supreme Court thus reversed the Ohio court's judgment. (Id. at p. 89, 109 S.Ct. at pp. 354–355.)
16. The exact language of the court's holding was “A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.” (469 U.S. at p. 396, 105 S.Ct. at p. 836; italics added.) Considered in isolation, this language appears open to the interpretation urged by the parents, that it applies to any first appeal as of right. In context, however, the holding plainly applies only to criminal appeals.
17. In Finley, Evitts was cited in support of the argument that even though a state need not grant a prisoner access to counsel on collateral postconviction review, once it has done so, the due process clause of the Fourteenth Amendment requires that counsel's actions comport with the procedures in Anders. (481 U.S. at p. 557, 107 S.Ct. at p. 1994.) As we have discussed, the Finley court rejected this argument.
18. We have come to the conclusion that Wende's mandate of an independent judicial review in criminal cases is a wasteful and redundant procedure of very little value and should be reconsidered by the Supreme Court.The emphasis in Anders, on which Wende rests, was on the need for a court to satisfy itself that counsel for indigent criminal defendants had diligently performed his or her duties correctly. Of course, a review of the complete record is the most obvious way to do that, but it is not the only way, nor is it the most efficient or the best way.Since Wende was decided in 1979, changes in California's appellate practice and procedure now provide other means of affording adequate review in indigent appeals. Since 1985, procedures have been instituted under which the appointment of counsel for indigent appellants in criminal and juvenile cases is administered by an independent agency. The agency which operates in this District is the California Appellate Project (“C.A.P.”). C.A.P. performs administrative functions in connection with the appointment of appellate counsel, and in addition, C.A.P. employs on its permanent staff some of the state's most able and experienced lawyers in criminal and juvenile law. Pursuant to rule 76.5 of the Rules of Court, the courts are relieved of the duty of assuring the quality of appointed counsel under the guidelines in section 20 of the Standards of Judicial Administration, because our contract with C.A.P. provides that the highly qualified attorneys on the C.A.P. staff shall “consult with and assist appointed counsel concerning the issues on appeal and appellant's opening brief.” In particular, this court assumes and expects that C.A.P.'s staff attorneys consult with counsel of record when a Wende brief is contemplated and, if deemed necessary by the assisting staff attorney or appointed counsel or both, assist counsel in determining whether arguable appellate issues exist. In our view, such assistance provides more than sufficient assurance that the record on each appeal has been diligently examined for error and that a conclusion by counsel that the appeal is without merit is one upon which the court can rely. A further independent review by the court, in the absence of any arguable claims raised directly by the indigent defendant, is both redundant and wasteful of scarce judicial resources.The fiscal and administrative burdens which Wende's independent judicial review requirement imposes upon this state's already overtaxed judicial system are substantial. (For example, in fiscal 1993–1994, there were 2,276 criminal appellate records filed in this district alone; from this total, there were filed 370 Wende briefs.) A state's interest in economical procedures is a legitimate factor to weigh in determining the requirements of due process under particular circumstances. (Santosky v. Kramer, supra, 455 U.S. at pp. 766–767, 102 S.Ct. at pp. 1401–1402.) In our view, the costs of an independent judicial review as required by Wende greatly outweigh the dubious benefit that such a review might provide to any particular appellant.
19. Indeed, the Legislature's recent enactment of section 366.26, subdivision (1), strongly suggests that the delay and expense of a Wende review in dependency cases does not enjoy legislative support. As we noted in footnote 9, ante, that new subsection bars any appellate review of an order setting a parental rights termination hearing unless appellate review is first sought by a petition for writ of mandate which “substantively address[es] the specific issues challenged.”
CROSKEY, Associate Justice.
KLEIN, P.J., and KITCHING, J., concur.