In re D.W.
Filed 1/14/09 In re D.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 D.W., a Person Coming Under the Juvenile Court Law. | H033181 (Santa Cruz County Super. Ct. No. DP001516) |
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. V.C., Defendant and Appellant. |
Appellant Victoria, mother of Debbie[1] appeals from a Juvenile Court Order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.[2] The Santa Cruz County Human Resources Agency (Agency) took Debbie into protective custody after Victoria, who had a long history of drug abuse and related criminal activity was arrested. Although Victoria suggested that Debbie be placed with Victorias mother, the Agency rejected the placement because Victorias mother had her own criminal and child welfare history. Instead, the court placed Debbie with the same family who had adopted Victorias younger brother (Debbies uncle).
Although the juvenile court initially ordered reunification services, after Victoria failed to make consistent progress, the court terminated services for her at the six-month review hearing. The court set a section 366.26 hearing after it terminated services for Debbies father at the 18-month review hearing. At this contested hearing, the court adopted the Agencys recommendation and terminated Victorias parental rights. This timely 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,[3] 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. (Id. at pp. 201-202.) We held that we do not have discretion to review the record, under any circumstance. (Id. at
p. 201.) The two foundational principals underlying the holdings in both Sara H. and Sade C. are the need for speedy resolutions in dependency cases, and the recognition that independent review of the record causes intolerable delay. (Ibid.) 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., supra, 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 the appellant 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 implications 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 due to 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 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. Respondent requests that we dismiss the appeal.
The appellant having failed to raise any issue on appeal, the appeal must be dismissed as abandoned. (Ben C., supra, 40 Cal.4th 529; Sade C., supra, 13 Cal.4th 952.)
Disposition
The appeal is dismissed as abandoned.
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RUSHING, P.J.
WE CONCUR:
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PREMO, J.
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ELIA, J.
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[1] By separate order issued this day, this court has ordered that appellant mother and the child be referred to by the above listed fictitious names in order to adequately protect their confidentiality.
[2] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
