Metropolitan News-Enterprise


Tuesday, December 22, 2009


Page 3


S.C.: Wende Procedures Not Applicable to Juvenile Proceedings


By SHERRI M. OKAMOTO, Staff Writer


The California Supreme Court yesterday rejected a mother’s attempt to keep custody of her two young sons by filing a brief challenging the termination of her parental rights to supplement that of her appointed counsel, which had raised no claim of error.

The court ruled 6-1 that an appellate court has discretion to permit a parent to personally file an additional brief, but must only do so upon a showing of good cause that an arguable issue does, in fact, exist.

The juvenile division of the San Diego Superior Court terminated parental rights for the mother of 2-year-old Phoenix and 1-year-old Dakota, identified as “M.H,” in January 2007. Retired San Diego Superior Court Judge Peter E. Riddle, sitting on assignment, selected adoption as the permanent plan for the children.

M.H. filed a timely notice of appeal, and her appointed attorney 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. 

Counsel asked the appellate court to exercise its discretion to independently review the entire record to determine whether any reversible errors were made and for the opportunity for M.H. to file her own supplemental brief.

Div. One of the Fourth District Court of Appeal concluded in an unpublished decision that it had “inherent discretion” to permit M.H. to file an additional brief in propria persona, but found “no reason to allow it in this case” and dismissed the appeal.

Writing for the Supreme Court, Justice Carlos R. Moreno said that the question of what procedures should be followed when counsel appointed to represent an indigent client on appeal concludes there are no arguable issues to raise has been addressed in several cases in various substantive areas of law.

Pointing to the criminal context, he cited the high court’s opinion in People v. Wende (1979) 25 Cal.3d 436 that an 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 he also noted that in In re Sade C. (1996) 13 Cal.4th 952, the justices ruled that the procedures set forth in Wende for criminal appeals are not required in an appeal from an order of the juvenile court affecting parental rights since the value of applying those procedures was “too slight to compel their invocation.”

The Wende procedures also do not apply to an appeal from the imposition of a conservatorship under the Lanterman-Petris-Short Act, pursuant to Conservatorship of Ben C., (2007) 40 Cal.4th 529, Moreno said, although a footnote in the high court’s decision in that case stated that the conservatee “is to be provided a copy of the brief and informed of the right to file a supplemental brief.” 

Based on that footnote, M.H. argued that the Court of Appeal was required to permit her to personally file an additional brief. But Moreno distinguished appeals from juvenile court orders affecting parental rights from those in conservatorship proceedings.

“When an appellant is being held pursuant to a conservatorship under the Lanterman-Petris-Short Act, it does no harm to permit the conservatee to file a supplemental brief,” he said.

Moreno explained that any delay caused by a conservatee’s decision to file a supplemental brief would only affect the conservatee, whereas any delay in an appeal from a juvenile court order terminating parental rights adversely impacts a child’s interest in securing a permanent placement as soon as possible.

He further opined that the delay that would ensue from requiring the Court of Appeal to permit an indigent parent to personally file a brief after appointed counsel has determined there are no arguable issues, absent a showing of good cause, would not be justified by an increase in fairness or accuracy of the proceedings. 

Moreno also rejected M.H.’s argument that disparate treatment of juvenile dependency, criminal, and conservatorship appellants violated principles of equal protection since those three categories of persons are not similarly situated.

The sole dissenting justice was Joyce L. Kennard, who contended that the Court of Appeal had “effectively nullified M.H.’s statutory right to appeal” by dismissing her appeal on the basis of her counsel’s determination that there were no claims of error to raise.

Kennard emphasized that M.H. had not abandoned her appeal since she had specifically asked for permission to file an appellate brief, and insisted M.H. was entitled to have the merits of any claims she raised addressed “in writing, with reasons stated” pursuant to Article VI of the California Constitution.

The case is in re Phoenix H., 09 S.O.S. 7117.


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