In re N.W.

Filed 10/23/08 In re N.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant, S.S. appeals from a Juvenile Court Order continuing dependency and family reunification services after a six month review hearing, pursuant to Welfare and Institutions Code section 366.21.[1] N.W., S.S.s 14 year old daughter, was adjudged a dependent child and removed from S.S.s home after S.S. threw salt at N.W.s head and failed to protect N.W. from her older brothers physical abuse. This court affirmed that jurisdictional and dispositional order in case number H031735. Thereafter, the juvenile court proceeded to an uncontested six month review hearing, where after considering the evidence, it adopted the recommendations of the Santa Cruz County Human Resources Agency to continue reunification services for another six months. 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,[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. (Id. at pp. 201-202.) We held that we do not have discretion to review the record, under any circumstance. (Id. at

p. 201.) These 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. (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 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 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 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. 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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PREMO, J.

WE CONCUR:

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RUSHING, P.J.

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ELIA, J.

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[1]All further code references shall be to the Welfare and Institutions Code, unless otherwise specified.

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