In re Alexis M.

Filed 5/20/08 In re Alexis M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Albert M., father of Alexis M., appeals from an order terminating his parental rights, pursuant to Welfare and Institutions Code section 366.26.[1] Alexis was taken into protective custody when her mother was arrested for a DUI with Alexis in the car, and she was ultimately detained because of neglect and domestic violence. At the time, appellant was in custody on drug charges. Appellant earlier had been ordered to have no contact with Alexis, her mother, and sibling because he had allegedly threatened to kill both Alexis mother and her sibling. Appellant waived his right to reunification services. His visitation remained contingent upon his jail status. After reunification services were terminated for Alexis mother, the trial court set the matter for a section 366.26 hearing. At the contested hearing on September 7, 2007, the court terminated appellants parental rights. This appeal ensued. We appointed counsel to represent appellant in this court.

Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues. (In re Sade C. (1996) 13 Cal.4th 952 (Sade C.).) In the opening brief, counsel acknowledged that this court has no duty to independently review the record pursuant to People v. Wende,[2] but requested that we allow appellant the opportunity to submit a brief in propria persona pursuant to Conservatorship of Ben C. (2007) 40 Cal.4th 529, 543- 544 (Ben C.).

In In re Sara H. (1997) 52 Cal.App.4th 198 (Sara H.), analyzing the Supreme Courts reasoning in Sade C., we held that the proper course of action in a juvenile dependency case, where counsel finds no meritorious appellate issue upon scrutiny of the record, is to deem the appeal abandoned and to dismiss it. (Sara H., supra, 52 Cal.App.4th at pp.201-202.) We held that we do not have discretion to review the record, under any circumstance. (Id. at p. 201.) The holdings in Sara H. and Sade C. arise out of the often expressed need for speedy resolution of dependency cases, and the inherent delay which an independent review of the record could cause. (Sara H., supra, 52 Cal.App.4th at p. 201.)

Despite these holdings, appellants counsel urges us to adopt the procedure articulated in Ben C. In Ben C. the Supreme Court held that where counsel has filed a no issue brief in a conservatorship proceeding, before dismissing the appeal as abandoned, the appellant should have the opportunity to submit a supplemental letter brief in propria persona. (Ben C. 40 Cal.4th at p. 544, fn. 6.)

Respondent disagrees that the Supreme Courts reasoning in Ben C. applies in juvenile dependency cases. Respondent argues that the additional 30 days afforded the appellant to file a supplemental brief in propria persona is not in the best interest of the dependent child who needs prompt finality. Although Ben C. was a conservatorship proceeding, the rights implicated in a dependency proceeding are, at least, equally fundamental. Further, in the past, where counsel in a dependency case was preparing to file a no issue letter pursuant to Sade C., we have allowed appellants to file a motion to vacate the appointment of counsel so that they could file a brief in propria persona. We have often granted these motions, recognizing the fundamental nature of the rights at stake in dependency appeals as well as the due process implication of allowing an appellant adequate access to the appellate court.

Realistically, the process of allowing the appellant to file a motion to vacate counsels appointment and then file a supplemental brief, as we have done in the past, would likely take as long if not longer than directly notifying the appellant that he has the right to file a supplemental brief. Therefore, there is no actual prejudice to the dependent child as a result of any delay caused by allowing the appellant an opportunity to file a supplemental brief in propria persona. In balancing the due process interests of the appellant with the interests of the childs need for expeditious finality, we find that appellant should be afforded an opportunity to file a supplemental letter brief in propria persona.

Based on this conclusion, we notified appellant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from him.

The appellant having failed to raise any issue on appeal the appeal must be dismissed. (Ben C., supra, 40 Cal.4th 529; Sade C., supra, 13 Cal.4th 952.)

Disposition

The appeal is dismissed. ______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2]People v. Wende (1979) 25 Cal.3d 436