In Re Angelica
FROEHLICH, J.*
This is an appeal from a judgment terminating the parental rights of appellant father, after a selection and implementation hearing pursuant to
Since we dismiss the appeal because no grounds for appeal were stated, a detailed recitation of the case background is unnecessary. However, to put the matter somewhat in perspective, we review the same cursorily. Appellant father and the mother of Angelica had several children, all of whom had been removed from their custody. At the time of Angelica‘s birth, all the children lived with their maternal grandmother. The mother was a drug addict who continued her habit during pregnancy with Angelica, resulting in removal of the child from parental custody shortly after birth. Appellant was in jail at the time of birth. He did not participate in the reunification program and appears to have been a very unreliable citizen. One of the social service reports indicated that from 1988 to the time of the hearing, he had been arrested six times for offenses including domestic violence, driving while intoxicated, possession of a deadly weapon and possession of a stolen vehicle. A report at the 12-month review indicated that appellant had had no contact with his children. He was served with notice of the
In asking this court to independently review the record in search of possible error, appellant refers to and relies upon People v. Wende (1979) 25 Cal.3d 436 [158 Cal. Rptr. 839, 600 P.2d 1071]. In that case the California Supreme Court, following what it conceived to be a mandate from the United States Supreme Court in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396], imposed upon Courts of Appeal the obligation to independently review the record whenever appointed counsel appealing a criminal conviction submits a brief which raises no specific issues. Appellant suggests that this authority, although derived from criminal process, is equally applicable to a dependency proceeding. (1a) Thus, appellant argues that whenever a parent appeals from an order terminating parental rights and the appointed appellate counsel for the case can find no
We do not accept this contention and in refusing to do so make two brief arguments. We abbreviate our presentation because this is a field twice plowed recently by other appellate courts. The first of these opinions, In re Sade C. (1995) 41 Cal. App.4th 1642 [44 Cal. Rptr.2d 509],* was originally published in March of this year, rehearing then granted, and the case republished with minor modifications very recently. The second was published as In re Angela G.* (Cal. App.), and is no longer citable as authority because hearing has been granted by the Supreme Court. Although the second of these opinions no longer constitutes authority, both opinions are obviously now before the Supreme Court, and there would be little point in repeating the logic contained therein. We will endeavor, therefore, not to restate points already well made. The purpose of our opinion will be to emphasize our agreement with these two prior decisions, and to add certain comments which will reflect our own particular approach to the matter.
Our first contention, which we acknowledge to be in reliance on the references and reasoning contained in footnote 18 to Justice Croskey‘s opinion in In re Sade, supra, 37 Cal. App.4th at page 112, is that the Wende procedure has outlived whatever utility it may originally have had. The mandate of appellate review of the criminal record set forth in Anders was based on the United States Supreme Court‘s conclusion that appellate counsel had not devoted adequate attention to the case, and indeed may have acted more as amicus curiae to the court rather than as advocate for the convicted defendant. (Anders v. California, supra, 386 U.S. at p. 743 [18 L.Ed.2d at pp. 497-498].) As Justice Croskey pointed out, California‘s appellate practice and procedures have been greatly modified since 1967, providing much more efficient appellate review of indigent appeals than was possible in 1967. To recast his conclusion, in consideration of our present procedures for providing review by independent appellate agencies and specially appointed counsel, it is both redundant and wasteful of scarce judicial resources to require a replication of this same study by staff of the Court of Appeal. We believe it is time for California Supreme Court review of the basic Wende principle, in light of current circumstances.
Our second argument accepts the existence of the Wende requirement in criminal law, but rejects the propriety of its use in standard juvenile dependency cases. The basis for the contention that Wende review is appropriate
The Anders requirement of heightened appellate review was grounded in recognition that the right of representation in criminal cases is one of federal constitutional derivation. (Anders v. California, supra, 386 U.S. at pp. 742, 744 [18 L.Ed.2d at pp. 497, 498].) That the Anders rule would not apply in situations in which indigent representation was based on other than federal constitutional grounds was confirmed in Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d 539, 107 S.Ct. 1990]. There the court considered whether Anders would be applicable in a postconviction proceeding in which the appointment of counsel was required not by federal constitutional but by state statutory requirements. Chief Justice Rehnquist said Anders did not apply, stating: “Of course, Anders did not set down an independent constitutional command that all lawyers, in all proceedings, must follow these particular procedures. Rather, Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.” (Id. at pp. 554-555 [95 L.Ed.2d at p. 545].)
(2) To determine, therefore, whether Wende review is required by federal authority in dependency cases, we must consider whether counsel‘s appointment in such cases is a federal “constitutional command.” We find that it is not. The right to counsel in criminal cases is automatically of constitutional dimension. (In re Kathy P. (1979) 25 Cal.3d 91, 103 [157 Cal. Rptr. 874, 599 P.2d 65]; Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733].) The right to counsel in dependency cases, however, does not automatically rise to a constitutional
(3) Assuming, therefore, that there may be termination proceedings the complexity of which demand appointment of counsel on due process grounds, can it be said that this case falls within the group? We think not. As we noted above, appellant at the trial hearing neither asserted a personal interest in obtaining custody of the child nor made any objection to the proposed placement. In light of appellant‘s ambivalent position at trial, it is
(1b) Concluding, therefore, that the right to counsel in this case, as in most dependency cases, does not rest on federal constitutional requirements, we further conclude that neither Anders nor Wende is authority for the proposition that independent appellate review of the record is required when appointed appellate counsel files a Wende brief.
Is there any basis for contending that this in-depth investigation by the Court of Appeal should be undertaken on grounds other than constitutional? Is there a policy reason why it should be done? There is not.
The Wende principle, generally, even as applied to criminal cases, has been effectively criticized. (See, e.g., People v. Wende, supra, 25 Cal.3d at pp. 443, 444 (conc. and dis. opn. of Clark, J.); People v. Von Staich (1980) 101 Cal. App.3d 172, 173-175 [161 Cal. Rptr. 448]; People v. Hackett (1995) 36 Cal. App.4th 1297, 1303-1305 [43 Cal. Rptr.2d 219].) However, the most reliable critique of the effectiveness of Wende review would seem derived not from theoretical analysis but from the experience of the courts which administer it, namely the Courts of Appeal. We assert that our personal experience with the potential and actual application of the Wende principle is worthy of serious consideration.
Counsel are appointed in virtually all dependency trials when requested by parties. When a trial order or judgment is appealed or writted, counsel are almost invariably appointed for the appeal. The only exception comes when we, looking at cases individually, can conclude with assurance that the party has the funds to hire private counsel. This happens very rarely.
The counsel who are appointed are competent. Particularly in terms of appellate work, counsel are experienced and diligent and produce a good work product. Our system of appointment relies upon a quasi-governmental agency, Appellate Defenders, Inc., which is staffed with most qualified and experienced attorneys, well able to handle both criminal and dependency appeals. This agency maintains a panel of private attorneys who accept referrals of indigency appeals, which service is not pro bono but compensated. This cadre of appellate counsel is professional. They rely to a considerable extent upon income from their appointed appellate work for their
Accordingly, we on the Court of Appeal become acquainted with the work of these lawyers. We see their diligence in the briefs they write seeking reversal of dependency orders. We know the lengths to which they will go in advocating the positions of their clients. These are not people presenting an amicus curiae brief.
Therefore, when we receive a Wende brief from one of these advocates, we are assured that in fact the record has been sifted, potential issues for review have been analyzed, and the conclusion reached that there are no issues for review is professionally sustainable. Beyond this, we know that before a Wende brief is submitted it, as well as the record on which it is based, have been reviewed by an experienced staff person at Appellate Defenders, Inc.4
What, then, is to be accomplished by requiring duplicative effort by the Court of Appeal? Our resources for digging issues out of records are no better, indeed probably inferior, to those of regular dependency appellate counsel. As a practical matter we know that in the several years in which we have accepted and given Wende reviews to dependency cases we have discovered, to the best of our present recollection, no unbriefed issues warranting further attention. Should a case be developed which actually reflected the complex issues giving rise, in accordance with the Lassiter principles, to due process concerns, it is likely that diligent appellate counsel could persuade us to give it that extra review available under Wende. However, the ordinary dependency case, as is true with this case, does not present that situation.
The possible merit of continuing Wende review of dependency cases must also be viewed in light of the administrative problems now facing our Courts of Appeal. A true Wende review in a dependency case requires the inspection of serial social service reports, minute orders of multiple hearings at the trial court, psychological reports, several reporters’ transcripts going back sometimes for periods of years, letters from friends, etc. This court now has a backlog of over 700 fully briefed cases waiting resolution. Our present workload will result in civil cases waiting for a period of from 15 to 18
The answer is “no.” We decline to apply Wende principles to dependency cases (short of the very unusual case described in our Lassiter discussion above). This appeal is dismissed.
Benke, Acting P.J., and Nares, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied January 18, 1996.