In re Angel G.
Filed 5/20/08 In re Angel G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re ANGEL G., a Person Coming Under the Juvenile Court Law. | H032181 (Monterey County Super. Ct. No. J40481) |
DEPARTMENT OF SOCIAL SERVICES, as Co-trustee, etc., Plaintiff and Respondent, v. S.B., Defendant and Appellant. |
Appellant S.B., mother of Angel G., appeals from an order terminating her parental rights, pursuant to Welfare and Institutions Code section 366.26. Appellant gave birth to Angel G. in October 2005, in a tent on Soledad Street in Monterey while appellant was homeless and using drugs. Six days after his birth, mother and child were both transported to the hospital where Angel tested positive for cocaine and methamphetamine. After her release from the hospital, appellant disappeared. Angel was placed with a foster family, where he remains to this day.
Appellants whereabouts remained unknown until April 14, 2006, when she was arrested. Thereafter, appellant became involved in a sobriety program and successfully participated in reunification services for close to one year, until she once again disappeared. Because of appellants relapse, the court adopted the Monterey County Department of Social and Employment Services (the Department) recommendation that reunification services be terminated as well as appellants parental rights. Although appellant reappeared at the Welfare and Institutions Code section 366.26 hearing, the court terminated her parental rights on August 24, 2007. 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,[1] 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 perceived delay which an independent review of the record would inevitably cause. (Sara H., supra, 52 Cal.App.4that 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.) 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 she 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 her right to submit written argument in her own behalf within 30 days. That period has elapsed and we have received no written argument from her.
In lieu of filing a respondents brief, the Department filed a motion to dismiss. In its motion, the Department asks that the court dismiss the appeal, as appellant has failed to file a supplemental brief.
The appellant having failed to raise any issue on appeal and upon motion of the respondent, 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:
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PREMO, J.
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ELIA, J.
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