In Re Benjamin E.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 73 OPINION

This is an appeal from a dispositional order entered on March 21, 1995, in a juvenile dependency proceeding pursuant to Welfare *Page 74 and Institutions Code section 395.1 Counsel appointed for appellant filed a brief which summarized the procedural and factual background of the proceedings. The facts are not in dispute. Counsel advises us that appellant's opening brief is presented pursuant to People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] (Wende), In re Brian B. (1983) 141 Cal.App.3d 397 [190 Cal.Rptr. 153], and In reJoyleaf W. (1984) 150 Cal.App.3d 865 [198 Cal.Rptr. 114]. By invoking our review pursuant to Wende, counsel advises us that no substantive issues warranting reversal on appeal could be identified.2 We decline to undertake a Wende review and hold that appealable dependency dispositional orders do not warrant the constitutionally protected procedures of Anders v.California (1967) 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396] as applied pursuant to Wende.

In Wende, supra, 25 Cal.3d 436 the California Supreme Court followed the direction of the United States Supreme Court inAnders v. California, supra, 386 U.S. 738. The court held that the Courts of Appeal have the obligation to independently review the record whenever appointed counsel appealing a criminal conviction submits a brief which raises no specific issues.(1a) Appellant contends that the review provisions of Wende are applicable to a parental rights case even though they are derived from the criminal process. Appellant argues that since California has chosen to provide counsel to parents at public expense, the Wende review procedure is the natural result of that decision. Thus, when appointed appellate counsel for the case can find no specific grounds to urge on appeal, it would be incumbent upon the Court of Appeal to mount its own independent investigation of the record to verify that the finding of that counsel is correct. We reject these lines of argument.

We acknowledge that there is precedent for Wende review in a dependency proceeding pursuant to In re Brian B., supra,141 Cal.App.3d 397. However, we question whether the right toWende review applies to a civil proceeding where a child is declared a dependent child and is removed from the home subject to a reunification plan. In this context, the rationale of In reBrian B., supra, is not persuasive. The court there found a "legislative recognition of the strong fundamental rights involved when the People [sic] separate a child from his parents" from the fact that the Legislature granted appointed counsel to parents in dependency proceedings under section 317. This is not a reason based on a constitutional analysis. *Page 75 (2) In a criminal case, an indigent defendant's right to court-appointed counsel is based primarily on the fact the defendant's personal liberty is at stake. (See Lassiter v.Department of Social Services (1981) 452 U.S. 18, 25 [68 L.Ed.2d 640, 648, 101 S.Ct. 2153].) By contrast, in a civil proceeding to terminate parental rights, the objective is not to prosecute and punish the indigent parent but to protect the child. (In re Michael S. (1981) 127 Cal.App.3d 348, 363-364 [179 Cal.Rptr. 546]; In re Mary S. (1986) 186 Cal.App.3d 414, 418 [230 Cal.Rptr. 726].) Consequently the due process clause of the Fourteenth Amendment does not require the appointment of counsel for an indigent parent in every termination of parental rights proceeding. (Lassiter v. Department of Social Services,supra, 452 U.S. 18.) The due process right to appointed counsel in a dependent child or termination of parental rights proceeding depends on weighing governmental versus private interests and the risk the procedures used will lead to erroneous decisions. (Id. at pp. 27-33 [68 L.Ed.2d at pp. 649-654].)