In Re Phoenix H.

62 Cal. Rptr. 3d 412, 152 Cal. App. 4th 1576
CourtCalifornia Court of Appeal
DecidedJuly 9, 2007
DocketD050304
StatusPublished

This text of 62 Cal. Rptr. 3d 412 (In Re Phoenix H.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Phoenix H., 62 Cal. Rptr. 3d 412, 152 Cal. App. 4th 1576 (Cal. Ct. App. 2007).

Opinion

62 Cal.Rptr.3d 412 (2007)
152 Cal.App.4th 1576

In re PHOENIX H. et al., Persons Coming Under the Juvenile Court Law.
San Diego County Health and Human Services Agency, Plaintiff and Respondent,
v.
M.H., Defendant and Appellant.

No. D050304.

Court of Appeal of California, Fourth District, Division One.

July 9, 2007.

*413 Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minors.

McCONNELL, P.J.

M.H. appeals a juvenile court judgment terminating her parental rights over her sons, Phoenix H. and Dakota H., and choosing adoption as the permanent plan. (Welf. & InstCode, § 366.26.) M.H. presents no issue on appeal, and citing In re Sade C. (1996) 13 Cal.4th 952, 55 Cal. Rptr.2d 771, 920 P.2d 716 (Sade C), asks that we exercise our discretion to independently review the record for error. In Sade C, the California Supreme Court held review pursuant to Anders v. People (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (Anders) and People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende ), is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his [or her] custody of a child or his [or her] status as the child's parent." (Sade C, supra, 13 Cal.4th at p. 959, 55 Cal.Rptr.2d 771, 920 P.2d 716.) Accordingly, we decline to review the record independently for error.

M.H.'s counsel also requests leave for her to file a supplemental brief in propria persona. We asked the parties for additional briefing on this issue in light of In re Conservatorship of Ben C. (2007) 40 Cal.4th 529, 53 Cal.Rptr.3d 856, 150 P.3d 738 (Ben C), which holds that the Anders/Wende protections are inapplicable in conservatorship proceedings, but the conservatee nonetheless has the right to file a supplemental brief in propria persona when his or her counsel finds no appealable issue. (Ben C, supra, at pp. 543, 544, fn. 6, 53 Cal.Rptr.3d 856, 150 P.3d 738.) After taking the responses into consideration, we conclude that while we have discretion to allow such briefing, we are not required to do so. We deny M.H.'s request and dismiss the appeal.

DISCUSSION

I

In Sade C, the court, as an element of its holding that the Anders/Wende procedures *414 are inapplicable in dependency proceedings, concluded the absence of the procedures would not lead to erroneous results in indigent parents' appeals.[1] The court explained: "[O]ur consideration of the many cases that have come before us on petition for review reveals that appointed appellate counsel faithfully conduct themselves as active advocates in behalf of indigent parents. This causes no surprise: the attorneys are enabled, and indeed encouraged, to effectively represent their clients by the procedural protections accorded them in the Court[s] of Appeal, including the right to precedence over all other causes [citation], which parallel those accorded them in the juvenile court [citation]. In accord is the experience of Division One of the Fourth Appellate District Court of Appeal, as it recently recounted in In re Angelica V. [39 Cal.App.4th 1007, 46 Cal.Rptr.2d 295 (1995)]. Having applied the procedures in question for more than a decade under its holdings in [In re ] Brian B. [(1983) 141 Cal.App.3d 397, 190 Cal.Rptr. 153] and [In re] Joyleaf W. [ (1984) 150 Cal.App.3d 865, 198 Cal.Rptr. 114], the court declared that `we have discovered, to the best of our present recollection, no unbriefed issues warranting further attention.' [Citation.] As a result, it judged the procedures `unproductive' [citation], and overruled Brian B. and Joyleaf W." (Saole C, supra, 13 Cal.4th at p. 990, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

More than a decade later, in Ben C, supra, 40 Cal.4th at page 537, 53 Cal. Rptr.3d 856, 150 P.3d 738, the court held "the Anders/Wende procedures are not required in appeals from LPS [Lanterman-Petris-Short] conservatorship proceedings. The conservatee is not a criminal defendant and the proceedings are civil in nature." Further, the court refused to extend the Anders/Wende procedures to conservatorship proceedings, finding an analysis similar to that of Sade C. showed the absence of the procedures would not significantly increase the risk of erroneous resolutions. (Ben C, supra, at p. 538, 53 Cal.Rptr.3d 856, 150 P.3d 738, citing Sade C, supra, 13 Cal.4th at pp. 990-991, 55 Cal.Rptr.2d 771, 920 P.2d 716.) The court explained the Legislature and the court "have built several layers of important safeguards into conservatorship procedure" *415 (Ben C, supra, at p. 540, 53 Cal. Rptr.3d 856, .150 P.3d 738), such as a "carefully calibrated series of temporary detentions for evaluation and treatment" before confinement, the right to a jury trial on the issue of grave disability, conservatorship terms limited to one year and rights to petition for rehearing during the term. (Id. at p. 541, 53 Cal.Rptr.3d 856, 150 P.3d 738.)

Moreover, a conservatee is entitled to appointed counsel, and the "Rules of Court also create safeguards to ensure active advocacy on appeal. A Court of Appeal must now evaluate an attorney's qualifications for appointment, divide its appointments list into at least two levels based on experience and qualifications, match an attorney with the demands of the case, and review and evaluate the performance of appointed counsel to determine whether they should remain on the list at the same level, be placed on a different level, or be deleted from the list." (Ben C, supra, 40 Cal.4th at p. 542, 53 Cal.Rptr.3d 856, 150 P.3d 738.) Further, when "a conservatorship is sustained on appeal, all safeguards remain in effect. The conservatorship still automatically expires at the end of a year. If a conservator seeks a new one-year commitment, the conservator again bears the burden of proof beyond a reasonable doubt.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
People v. Wende
600 P.2d 1071 (California Supreme Court, 1979)
In Re Sade C.
920 P.2d 716 (California Supreme Court, 1996)
In Re Marilyn H
851 P.2d 826 (California Supreme Court, 1993)
San Diego County Department of Social Services v. Angeline W.
150 Cal. App. 3d 865 (California Court of Appeal, 1984)
In Re XV
33 Cal. Rptr. 3d 893 (California Court of Appeal, 2005)
In Re Angelica
39 Cal. App. 4th 1007 (California Court of Appeal, 1995)
San Diego County Health & Human Services Agency v. Ben C.
150 P.3d 738 (California Supreme Court, 2007)
Los Angeles County Department of Children's Services v. Gregory C.
920 P.2d 716 (California Supreme Court, 1996)
San Diego County Health & Human Services Agency v. Anthony V.
132 Cal. App. 4th 794 (California Court of Appeal, 2005)

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Bluebook (online)
62 Cal. Rptr. 3d 412, 152 Cal. App. 4th 1576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-phoenix-h-calctapp-2007.