Los Angeles County Department of Children's Services v. Gregory C. (1996) · DecisionDepot

Los Angeles County Department of Children's Services v. Gregory C.

Name: California Superior Court Tentative Rulings
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California Supreme Court Aug 26, 1996 No. No. S048796Published

Before: Kennard, Mosk

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Holding. The procedures established in Anders v. California and People v. Wende, which require appellate courts to independently review the record for arguable issues when appointed counsel finds no merit in an appeal, do not apply to an indigent parent's appeal from a judgment or order in juvenile dependency or parental rights termination proceedings.

Issues

Does the Anders v. California procedure for indigent criminal appeals apply to an indigent parent's appeal from a judgment or order affecting child custody or parental status?

Disposition. affirmed

Opinion — Mosk

Opinion

MOSK, J. We granted review in this cause to address the question whether Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396] (hereafter sometimes Anders), which has been considered in decisions including People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] (hereafter sometimes Wende), applies, or must or should be extended, to an indigent parent’s appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child’s parent. As will appear, our answer is no.

In the Juvenile Court of the Los Angeles County Superior Court (hereafter the juvenile court or simply the court), the Los Angeles County Department of Children’s Services (hereafter DCS) filed two separate petitions in two separate proceedings under the juvenile court law (Welf. & Inst. Code, § 200 et seq.), as detailed below.1

[960]In No. LK00851, DCS filed a petition requesting the juvenile court to adjudge a minor referred to as Sade C. to be within its jurisdiction and to declare her a dependent child. As subsequently amended, the petition alleged, inter alia, that Sade had suffered, or faced a substantial risk that she would suffer, serious physical harm or illness as a result of her parents’ failure or inability to furnish adequate supervision or protection, or their inability to provide regular care, because of substance abuse. Facts to the following effect were subsequently established: Sade was bom premature, weighed less than four pounds, suffered the effects of intrauterine cocaine ingestion, and was taken into DCS custody at four days old; her mother was Lakeisha C., then seventeen years old, who had a history of significant criminal activity and substantial drug use; her father was Gregory C., then twenty-four years old, who also had a history of significant criminal activity and substantial dmg use.

In the course of the proceedings, the juvenile court appointed separate counsel for Lakeisha and Gregory.

When Sade was somewhat more than four months old, the juvenile court conducted what was in substance a hearing on jurisdiction and disposition. As to jurisdiction, it impliedly sustained the petition, effectively finding true the allegation of serious physical harm or illness. It found by clear and convincing evidence that, in the physical custody of Lakeisha and Gregory, Sade faced a substantial danger to her physical health that could not be avoided by any reasonable means short of removal. As to disposition, it made various orders. So far as pertinent here, it ordered Sade declared a dependent child. It also ordered her formally removed from the physical custody of Lakeisha and Gregory and transferred to that of DCS for suitable placement. In addition, it ordered DCS to provide family reunification services.

Related research

In No. CK09428, DCS filed a petition requesting the juvenile court to adjudge a minor referred to as Vanessa R. to be within its jurisdiction and to declare her a dependent child. The petition alleged, inter alia, that Vanessa had suffered, or faced a substantial risk that she would suffer, serious physical harm inflicted nonaccidentally by her parents; that she had suffered, or faced a substantial risk that she would suffer, serious physical harm or illness as a result of her parents’ failure or inability to furnish adequate supervision or protection; that she was suffering, or was facing a substantial risk that she would suffer, serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior against herself or others, because of the conduct of her parents and their inability to provide appropriate care; that she was under five years old and had suffered severe physical abuse at her parents’ hands; and that she had been subjected to one or more acts of cruelty by her parents. Facts to the following effect [963]were subsequently established: Vanessa was taken into DCS custody at four months old after she was delivered to a hospital emergency room for treatment of injuries including a fractured clavicle, fractured right arm, and bruises on both knees and (apparently) under her right eye; an emergency room physician was of the opinion that the injuries resulted from abuse and reported the matter; an associate of the child’s pediatrician subsequently concurred in that view; the child’s mother was Kris M., an “adult teenager[]” and high school graduate, who received Aid to Families With Dependent Children and had normally resided in the home of her mother and stepfather—her place of abode at the time of the injuries in question—but later moved; the child’s father was Edward R., also an “adult teenager[]” and high school graduate, who worked at a grocery store and normally resided in the home of his mother and father.

In Griffin v. Illinois (1956) 351 U.S. 12 [100 L.Ed. 891, 76 S.Ct. 585, 55 A.L.R.2d 1055] (hereafter sometimes Griffin), the court was presented with the question whether the Fourteenth Amendment’s due process or equal protection clause was violated when a state provided an indigent criminal defendant, like all others, an appeal as of right; required him to furnish a transcript of trial proceedings for adequate and effective review; but denied him a copy because he was unable to make the purchase for lack of funds. It gave an affirmative answer. Writing for a four-member plurality, Justice Black relied on both the due process clause and its requirement of fundamental fairness and the equal protection clause and its requirement of similar treatment for similarly situated individuals. “[0]ur . . . constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’ ” (Id. at p. 17 [100 L.Ed. at p. 898] (plur. opn. by Black, J.).) “It is true that a State is not required by the Federal Constitution to provide ... a right to appellate review at all. [Citation.] But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty. Appellate review has now become an integral part of the [state] trial system for finally adjudicating the guilt or innocence of a defendant. Consequently at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons . . . from [967]invidious discriminations.” (Id. at p. 18 [100 L.Ed.2d at pp. 898-899] (plur. opn. by Black, J.).) “There can be no equal justice where the kind of’ appeal “a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate” and effective “appellate review as defendants who have money enough to buy transcripts.” (Id. at p. 19 [100 L.Ed. at p. 899] (plur. opn. by Black, J.).) Concurring in the judgment, Justice Frankfurter rested solely on the equal protection clause. (Id. at pp. 20-26 [100 L.Ed. at pp. 900-903] (conc. opn. of Frankfurter, J.).)

First, Anders establishes certain procedures for state appellate courts that are “prophylactic” in nature. (Pennsylvania v. Finley, supra, 481 U.S. at p. 555 [95 L.Ed.2d at p. 545]; see Penson v. Ohio, supra, 488 U.S. at p. 80 [102 L.Ed.2d at pp. 308-309] [speaking of Anders's “safeguards”].) It does not, however, “set down” any “independent . . . command” derived from the United States Constitution itself. (Pennsylvania v. Finley, supra, 481 U.S. at p. 555 [95 L.Ed.2d at p. 545]; see Penson v. Ohio, supra, 488 U.S. at p. 80 [102 L.Ed.2d at pp. 308-309].) If, after conscientious examination, appointed appellate counsel, in an indigent criminal defendant’s first appeal as of right, moves the appellate court for leave to withdraw on the ground that the appeal is “wholly frivolous,” “without merit,” or generally “lacking] any basis in law or fact” (McCoy v. Court of Appeals of Wisconsin, supra, 486 U.S. at pp. 438-439, fn. 10 [100 L.Ed.2d at p. 453]), these steps must be taken: Counsel must submit an Anders brief—which, although a peculiar kind of brief, is a brief nonetheless—“referring to anything in the record that might arguably support the appeal.” (Anders v. California, supra, 386 U.S. at p. 744 [18 L.Ed.2d at p. 498].) The defendant must next be “furnished” a copy and “allowed . . . [time] to raise any points that he chooses . . . .” (Ibid.) The court must then conduct an Anders review, which is a “full examination of all the proceedings ... to decide whether the case is wholly frivolous.” (Ibid.) If it does not find any point to be “arguable on [its] merits,” it may grant counsel’s motion to withdraw and proceed to dismiss the appeal, so far as federal constitutional principles are concerned, or decide it on the merits, if state law requires, on the basis that “the case is wholly frivolous.” (Ibid.) By contrast, if it does so find, it must “afford the [defendant] the assistance of counsel to argue the appeal” (ibid.)—apparently, either [978]by denying counsel’s motion to withdraw or by granting his request and appointing new counsel in his place.

The indigent parent has a “liberty interest ... in the care, custody, and management of’ his child. (Santosky v. Kramer, supra, 455 U.S. at p. 753 [71 L.Ed.2d at p. 606]; accord, id. at pp. 758-759 [71 L.Ed.2d at pp. 609-610]; Lassiter v. Department of Social Services, supra, 452 U.S. at p. 27 [68 L.Ed.2d at pp. 649-650]; see In re Marilyn H., supra, 5 Cal.4th at p. 306.) This concern has been characterized as “fundamental.” (Santosky v. Kramer, supra, 455 U.S. at pp. 753, 759 [71 L.Ed.2d at pp. 606, 610]; accord, In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [146 Cal.Rptr. 623, 579 P.2d 514]; see Lassiter v. Department of Social Services, supra, 452 U.S. at p. 27 [68 L.Ed.2d at p. 649] [using the term “important”]; id. at p. 31 [68 L.Ed.2d at p. 652] [using the term “extremely important”].) The parent has a [988]derivative “liberty interest” (Santosky v. Kramer, supra, 455 U.S. at p. 753 [71 L.Ed.2d at p. 606]) in the “accuracy and justice” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 27 [68 L.Ed.2d at p. 650]; see Santosky v. Kramer, supra, 455 U.S. at pp. 760-761, 765 [71 L.Ed.2d at pp. 610-611, 614]) of the resolution of his appeal. This concern has been described as “extremely important” in general (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 31 [68 L.Ed.2d at p. 652]), and in fact “commanding” when parental status is involved and not merely child custody (id. at p. 27 [68 L.Ed.2d at p. 650]; accord, Santosky v. Kramer, supra, 455 U.S. at p. 759 [71 L.Ed.2d at p. 610]; see id. at p. 760 [71 L.Ed.2d at p. 611] [using the term “vital”]).15 As a theoretical matter, these interests call for Anders's “prophylactic” procedures: they would arguably receive added, and appropriate, protection if steps were taken to ensure that “counsel acts in the role of an active advocate in behalf of his client” (Anders v. California, supra, 386 U.S. at p. 744 [18 L.Ed.2d at p. 498]). It must be noted, however, that the appealed-from decision, which is adverse to the parent and is predicated on detriment he caused or allowed his child to suffer, is presumptively accurate and just. (Cf. McCoy v. Court of Appeals of Wisconsin, supra, 486 U.S. at p. 436 [100 L.Ed.2d at pp. 451-452] [stating that, “[i]f a convicted defendant elects to appeal, ... he must assume the burden of convincing an appellate tribunal that reversible error occurred at trial”].)

The child has a “liberty interestf]” (Santosky v. Kramer, supra, 455 U.S. at p. 754, fn. 7 [71 L.Ed.2d at p. 606]) in a “normal family home” (id. at p. 759 [71 L.Ed.2d at p. 610]), with his parents if possible (id. at p. 760 [71 L.Ed.2d at pp. 610-611]), or at least in a home that is “stable” (In re Marilyn H., supra, 5 Cal.4th at p. 306). This concern has been characterized as “important” (Santosky v. Kramer, supra, 455 U.S. at p. 754, fn. 7 [71 L.Ed.2d at p. 606] [semble]) and even “compelling” (In re Marilyn H., supra, 5 Cal.4th at p. 306). “It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or [other caretakers]. There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current ‘home,’ . . . especially when such uncertainty is prolonged.” (Lehman v. Lycoming County Children’s Services (1982) 458 U.S. 502, 513-514 [73 L.Ed.2d 928, 938, 102 S.Ct. 3231].) The child has a derivative “liberty interest[]” (Santosky v. Kramer, supra, 455 U.S. at p. 754, fn. 7 [71 L.Ed.2d at p. 606]) in an accurate and just resolution of his parent’s appeal (see id. at pp. 760-761, 765 [71 L.Ed.2d at pp. 610-612, 614]). This concern too might be called “important” (Santosky v. Kramer, supra, 455 U.S. at p. 754, fn. 7 [71 L.Ed.2d at p. 606] [semble]) and even “compelling” (In re Marilyn H., supra, 5 Cal.4th at p. [989306]).16 As a theoretical matter, these interests may either call for, or counsel against, Anders's “prophylactic” procedures. What the parent wants or needs is not necessarily what the child wants or needs. (See Santosky v. Kramer, supra, 455 U.S. at p. 788, fn. 13 [71 L.Ed.2d at pp. 628-629] (dis. opn. of Rehnquist, J.).) If consistent, any added protection arguably given to the parent might benefit the child as well. If inconsistent, however, such protection might effectively cause the child harm by helping the parent. The presumption, evidently, is that the wants and needs of parent and child are inconsistent. As stated, the appealed-from decision, which is predicated on detriment the parent caused or allowed his child to suffer, is presumptively accurate and just. (Cf. Santosky v. Kramer, supra, 455 U.S. at p. 760 [71 L.Ed.2d at p. 611] [stating that, “[a]fter the State has established parental unfitness . . . , the court may assume . . . that the interests of the child and the natural parents . . . diverge”].)17

The second element embraces the state’s interests. The state has a “parens patriae interest in preserving and promoting the welfare of the child . . . .” (Santosky v. Kramer, supra, 455 U.S. at p. 766 [71 L.Ed.2d at p. 615]; accord, Lassiter v. Department of Social Services, supra, 452 U.S. at p. 27 [68 L.Ed.2d at p. 650].) This concern has been characterized as “urgent” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 27 [68 L.Ed.2d at p. 650]; accord, Santosky v. Kramer, supra, 455 U.S. at p. 766 [71 L.Ed.2d at p. 615]) and even “compelling” (In re Marilyn H., supra, 5 Cal.4th at p. 307). The state also has an interest in an accurate and just resolution of the parent’s appeal. (See Santosky v. Kramer, supra, 455 U.S. at p. 766 [71 L.Ed.2d at p. 615]; Lassiter v. Department of Social Services, supra, 452 U.S. at p. 27 [68 L.Ed.2d at p. 650].) This concern might be called “important” (Santosky v. Kramer, supra, 455 U.S. at p. 754, fn. 7 [71 L.Ed.2d at p. 606]) and even “compelling” (In re Marilyn H., supra, 5 Cal.4th at p. 306). Finally, the state has a “fiscal and administrative interest in reducing the cost and burden of [the] proceedings.” (Santosky v. Kramer, [990]supra, 455 U.S. at p. 766 [71 L.Ed.2d at p. 615]; accord, Lassiter v. Department of Social Services, supra, 452 U.S. at p. 28 [68 L.Ed.2d at p. 650].) This concern has been deemed merely “legitimate.” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 28 [68 L.Ed.2d at p. 650].) To be sure, money counts little. “[I]t is hardly significant enough to overcome private interests as important as those” of the indigent parent and his child. (Ibid.) But time counts more. Proceedings such as these “must be concluded as rapidly as is consistent with fairness . . . .” (Id. at p. 32 [68 L.Ed.2d at p. 653].) A “period of time” that “may not seem . . . long ... to an adult. . . can be a lifetime to a young child.” (In re Marilyn H., supra, 5 Cal.4th at p. 310.) “Childhood does not wait for the parent to become adequate.” (Ibid.) As a theoretical matter, these interests may either call for, or counsel against, Anders’s “prophylactic” procedures. They are in opposition to the extent that an economical and expeditious resolution is hindered. They are in support, by contrast, to the extent that an accurate and just resolution is facilitated. But to repeat: The appealed-from decision, which is adverse to the parent and is predicated on detriment he has caused or allowed his child to suffer, is presumptively accurate and just. It presumptively establishes that the child’s welfare lies with someone other than his parent.

A similar argument is that Anders's “prophylactic” procedures must be extended beyond an indigent criminal defendant’s first appeal as of right in order to reach an indigent parent’s appeal from a state-obtained decision adversely affecting child custody or parental status under direct compulsion of the equal protection clause of the Fourteenth Amendment and its requirement of similar treatment for similarly situated individuals. The premise fails. Criminal defendants and parents are not similarly situated. By definition, criminal defendants face punishment. Parents do not. (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 34 [68 L.Ed.2d at p. 654] (conc. opn. of Burger, C. J.).) Criminal defendants, as such, are expressly given protections in the United States Constitution itself. (See U.S. Const., Amends. V, VI, VIII, & XIV, § 1; cf. id., art. III, §3 [treason].) Parents are not. Moreover, at trial, criminal defendants have a general right under the Fourteenth Amendment’s due process clause to the assistance of appointed trial counsel if indigent (Gideon v. Wainwright, supra, 372 U.S. at pp. 336-345 [9 L.Ed.2d at pp. 800-806]), are entitled to fully confront and cross-examine witnesses under the Sixth Amendment as made applicable to the states through the Fourteenth Amendment’s due process clause (Pointer [992]v. Texas (1965) 380 U.S. 400, 403-406 [13 L.Ed.2d 923, 925-928, 85 S.Ct. 1065]), and are favored by the imposition on the state of the burden of proof beyond a reasonable doubt, also through the Fourteenth Amendment’s due process clause (In re Winship (1970) 397 U.S. 358, 361-364 [25 L.Ed.2d 368, 373-375, 90 S.Ct. 1068]); and, in their first appeal as of right, they have a general right to appointed appellate counsel under both the due process and equal protection clauses of the Fourteenth Amendment (Douglas v. California, supra, 372 U.S. at pp. 354-358 [9 L.Ed.2d at pp. 812-815]). Parents are not so benefited. In analogous proceedings at the trial level, they do not have a general due process right to appointed trial counsel (Lassiter v. Department of Social Services, supra, 452 U.S. at pp. 24-32 [68 L.Ed.2d at pp. 647-653]), are not entitled to full confrontation and cross-examination (In re Malinda S., supra, 51 Cal.3d at pp. 384-385 [semble]), and are not favored through the standard of proof beyond a reasonable doubt (see Santosky v. Kramer, supra, 455 U.S. at pp. 768-770 [71 L.Ed.2d at pp. 616-617]); on appeal, they do not have a general federal constitutional right to appointed appellate counsel, at least not by operation of the due process clause. All this is not to magnify criminal defendants and diminish parents. It is only to show that, for present purposes, they are not similarly situated.19

Generally, the Courts of Appeal have confined Anders and Wende to criminal appeals. (See, e.g., In re Olsen (1986) 176 Cal.App.3d 386, 389-392 [221 Cal.Rptr. 772] [holding that Anders and Wende are applicable to criminal appeals of misdemeanors as well as felonies].) They have generally declined to reach into civil appeals. (See, e.g., Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117, fn. 2 [210 Cal.Rptr. 109] [distinguishing Wende in the area of civil appeals]; Grillo v. Smith (1983) 144 Cal.App.3d 868, 873, fn. 3 [193 Cal.Rptr. 414] [same]; see also Adoption of Chad T. (1995) 39 Cal.App.4th 1107, 1108-1109 [46 Cal.Rptr.2d 147] [declining to extend Wende to appeals from a termination of parental rights under the Family Code, which is obtained by a private party and not the state]; cf. Ronald S. v. Superior Court (1995) 34 Cal.App.4th 1467, 1468-1469 [41 Cal.Rptr.2d 139] [declining to extend Wende to proceedings on a petition for “extraordinary relief’ challenging a (presumably) adverse order under the juvenile court law].) Exceptions, however, are apparent. (See County of Madera v. Jacobson (1987) 194 Cal.App.3d 569, 570-573 [239 Cal.Rptr. 602] (per curiam) [purporting to extend Wende to paternity appeals]; Conservatorship of Besoyan (1986) 181 Cal.App.3d 34, 36-38 [226 Cal.Rptr. 196] (per curiam) [same as to conservatorship appeals]; Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1023 [36 Cal.Rptr.2d 40, 884 P.2d 988] (conc. and dis. opn. of Mosk, J.) [following Besoyan]; see also In re Adrian O. (1984) 155 Cal.App.3d 631, 635 [202 Cal.Rptr. 287] [appearing to assume that Wende is applicable to appeals from a termination of parental rights under the juvenile court law]; In re Edward S. (1982) 133 Cal.App.3d 154, 157-158 [183 Cal.Rptr. 733] [same as to appeals from an adjudication of juvenile delinquency under the juvenile court law]; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1498, fn. 1 [281 Cal.Rptr, 6] [same]; In re Deon D. (1989) 208 Cal.App.3d 953, 955-956 [256 Cal.Rptr. 490] [same].)

Dissent — Kennard

KENNARD, J., Dissenting. Under California law, indigent parents seeking to appeal a trial court’s decision adversely affecting their parental rights in a case brought by the state are entitled to court-appointed counsel. The question before the court is this: when the appointed attorney notifies the appellate court that there are no arguable issues, what steps should the court take to ensure that the appealing parent has not been denied the assistance of counsel?

In Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396] (hereafter sometimes referred to as simply Anders), the United States Supreme Court held that when a court-appointed attorney representing an indigent criminal appellant concludes that there are no meritorious grounds of appeal, counsel should so inform the court and ask leave to withdraw from the case. To ensure that the appellant has not been denied the constitutional right to the assistance of counsel, the request must be accompanied by a brief setting forth the facts of the case, and “referring to anything in the record that arguably might support the appeal.” (Id. at p. 744 [18 L.Ed.2d at p. 498].) Also, a copy of the brief must be provided to the appellant, who must be given the opportunity to raise “any points that he chooses.” (Ibid.) The appellate court must then conduct a “full examination of all the proceedings” to determine “whether the case is wholly frivolous.” (Ibid.)

In today’s decision, the majority holds that the Anders procedures need not be complied with in an appeal by an indigent parent from a judgment that was obtained by the state and adversely affects the custodial rights of the parent or the latter’s status as the child’s parent. Instead, the majority concludes that the appellate court should dismiss the appeal because the appellant is deemed to have “abandoned” it by failing to file a brief raising any claims of error.

I disagree. In my view, the procedure that the high court set forth in Anders v. California, supra, 386 U.S. 738, is reflected in our state’s statutory scheme which, as I noted at the outset, entitles indigent parents appealing a [996]judgment adversely affecting their parental rights to a court-appointed attorney acting as an active advocate on their behalf. As discussed below, the majority’s holding has been rejected by almost every other state that has considered the issue.

This is a consolidated appeal of two unrelated cases, both arising in Los Angeles County.

In the first case, Gregory C. appealed from a superior court order that terminated Gregory’s parental rights in his daughter, Sade, and denied his request that Sade be placed in the home of Gregory’s mother, instead directing that Sade be placed in the custody of her mother’s aunt. Declaring himself indigent, Gregory asked the Court of Appeal to appoint counsel to pursue his appeal. The court did so. Thereafter, Gregory’s appellate attorney filed a brief. The brief contained merely the following: a statement of the case and a statement of facts; a declaration stating that counsel had thoroughly reviewed the record; and a request that the court examine the record to determine the existence of arguable issues, in accordance with the procedure established in People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] (hereafter sometimes referred to as simply Wende). Counsel did not seek to withdraw from the case, stating she would “brief any issue(s) that the Court requests.” Counsel mentioned that she had advised Gregory that he could himself submit a brief to the court within 30 days. Although counsel did not state that she had found no arguable points, this court has said that such a statement is unnecessary: “Counsel’s inability to find any arguable issues may readily be inferred from [her] failure to raise any.” (Wende, supra, 25 Cal.3d at p. 442.)

In the second case, Edward R. and Kris M., the indigent parents of Vanessa R., each appealed from a superior court order finding Vanessa to be the victim of severe physical abuse and cruelty and declaring her a dependent of the court. At their request, the Court of Appeal appointed counsel to represent them on appeal. Because of the adverse interests at stake, the court appointed a separate attorney for each parent. Thereafter, each attorney submitted a “no issue” brief that in all significant respects was similar to the one filed by counsel for Gregory C.

After consolidating the two cases, the Court of Appeal held that it was under no duty to independently examine the appellate record to determine the existence of any arguable issues. Because none of the attorneys had submitted a brief raising any claims of error, the Court of Appeal dismissed the appeals as abandoned.

[997]II

Although the issue here arose in a civil setting, any analysis must, as the majority acknowledges (maj. opn., ante, at pp. 968-969), commence with a discussion of the United States Supreme Court’s 1967 decision in Anders v. California, supra, 386 U.S. 738, which involved an indigent appellant in a criminal case.

In Anders, the high court explained: “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” (Anders v. California, supra, 386 U.S. at p. 744 [18 L.Ed.2d at p. 498].)

A dozen years later, in People v. Wende, supra, 25 Cal.3d 436, this court altered the procedure that the high court established in Anders v. California, supra, 386 U.S. 738, in one minor respect: we held that in a criminal case a court-appointed appellate counsel who, after a thorough review of the record, finds no potentially meritorious issues to raise, need not seek permission from the court to withdraw from the case. If the appellate court’s examination of the record reveals specific issues worthy of argument, it may ask counsel to brief and argue those points. (People v. Wende, supra, 25 Cal.3d at p. 442.)

Underlying the holdings of Anders and Wende is the recognition that the federal constitution’s requirement of “substantial equality” and “fair process” can be achieved only when a court-appointed attorney acts as an active advocate for the client. (Anders v. California, supra, 386 U.S. at p. 744 [18 L.Ed.2d at p. 498]; People v. Wende, supra, 25 Cal.3d at p. 439.) Although there is no constitutional right to appeal a criminal conviction, the United States Supreme Court has held that once a state chooses to create a right to appeal such convictions, then all criminal defendants, rich and poor alike, are entitled to the competent assistance of counsel on appeal. (Douglas v. California (1963) 372 U.S. 353, 358 [9 L.Ed.2d 811, 815, 83 S.Ct. 814].)

[998]III

In California, the Legislature has granted indigent parents the right to the assistance of a court-appointed attorney when appealing a judgment of the juvenile court adversely affecting their parental rights. Thus, an indigent parent who seeks to appeal a judgment terminating parental rights has a state-created right to be represented by a court-appointed attorney to pursue the appeal. (Fam. Code, § 7895.) As to an indigent parent seeking to appeal a judgment of the juvenile court declaring the child to be a dependent child of the court, there is no express state-cheated right to appointed counsel on appeal. But such a right is “implicit in the whole statutory scheme” governing dependent children. (In re Jacqueline H. (1978) 21 Cal.3d 170, 176 [145 Cal.Rptr. 548, 577 P.2d 683], citing In re Simeth (1974) 40 Cal.App.3d 982, 984-985 [115 Cal.Rptr. 617]; see also Cal. Rules of Court, rule 1435.) Recently, in 1994, the Legislature enacted Welfare and Institutions Code section 317.5, which declares not only that parents in dependency proceedings have the right to the assistance of counsel, but that any counsel appointed to represent the parent must be “competent.”1

What steps did the Legislature want appellate courts to take to ensure that indigent parents appealing a judgment adversely affecting their parental rights would be guaranteed their right to counsel, and that counsel provide “competent” assistance, as required by Welfare and Institutions Code section 317.5? The Legislature did not say. It is likely, however, that the Legislature intended that in such cases the appellate courts employ the same procedure the high court established in Anders v. California, supra, 386 U.S. 738, to “insure that indigent criminal appellants receive effective assistance of counsel.” (U.S. v. Burnett (2d Cir. 1993) 989 F.2d 100, 104.) In support of my view, I offer the following.

As the majority concedes, denial of the right to counsel “may be irremediable” (maj. opn., ante, at p. 990). Thus, if an appellate counsel’s ineffective representation or failure to act as a competent advocate results in the affirmance of a juvenile court’s judgment erroneously depriving a parent of the custody of the child, that judgment results in a loss to both the parent and the child that can never be undone. It is therefore essential that steps be taken before the appeal is decided to ensure that the parent is provided with competent counsel.

[999]Also, in 1994, when the Legislature enacted Welfare and Institutions Code section 317.5 (requiring that appointed counsel be “competent”), California courts were already following the procedures that the high court had articulated in 1967 in Anders v. California, supra, 386 U.S. 738 (affording indigent criminal appellants the right to competent court-appointed counsel) and that this court modified slightly in People v. Wende, supra, 25 Cal.3d 436. In addition, although in 1994 this court had yet to consider the applicability of the Anders procedure to appeals by indigent parents from juvenile court decisions, every Court of Appeal to consider the issue up to that time had assumed applicability of the Anders procedures to such appeals. (See, e.g., In re Twighla T. (1992) 4 Cal.App.4th 799, 803 [5 Cal.Rptr.2d 752]; In re Kristin W. (1990) 222 Cal.App.3d 234, 250 [271 Cal.Rptr. 629]; In re Adrian O. (1984) 155 Cal.App.3d 631, 635 [202 Cal.Rptr. 287]; In re Joyleaf W. (1984) 150 Cal.App.3d 865, 869 [198 Cal.Rptr. 114]; In re Brian B. (1983) 141 Cal.App.3d 397, 398 [190 Cal.Rptr. 153]; In re Jesse H. (1981) 126 Cal.App.3d 1048, 1049 [178 Cal.Rptr. 205].)

I am not alone in my view that the United States Supreme Court’s holding in Anders v. California, supra, 386 U.S. 738 applies with equal force to cases involving indigent parents appealing a juvenile court’s decision adversely affecting their parental rights. Almost every other jurisdiction that has addressed this issue has so held. (J.K. v. Lee County (Ala.Civ.App. 1995) 668 So.2d 813, 816; Matter of Keller (1985) 138 Ill.App.3d 746 [93 Ill.Dec. 190, 486 N.E.2d 291, 292]; Morris v. Lucas County Children Serv. Bd. (1989) 49 Ohio App.3d 86 [550 N.E.2d 980, 981]; In re V.E. (1992) 417 Pa.Super. 68 [611 A.2d 1267,1275]; see also State v. Balfour (1991) 311 Or. 434 [814 P.2d 1069] [applying Anders procedures in termination of parental rights case, but holding that under Anders an appellate court need not review the record if appellate counsel finds no issues arguable on the merits but does not withdraw]; In re Welfare of Hall (1983) 99 Wn.2d 842 [664 P.2d 1245] [denying counsel’s motion to withdraw on the ground that Anders is inapplicable, but not discussing whether court must review record if counsel finds no nonffivolous issues].)

For the reasons given above, I conclude that the protective procedure that the high court established in Anders v. California, supra, 386 U.S. 738, is implicitly included in California’s statutory scheme granting indigent parents the right to the competent assistance of court-appointed counsel on appeal from a juvenile court judgment adversely affecting their parental rights.

Conclusion

I would reverse the judgment of the Court of Appeal, and I would remand these matters with directions to that court to follow the procedures set forth [1000]in Anders v. California, supra, 386 U.S. 738, and People v. Wende, supra, 25 Cal.3d 436.

This court has not decided whether the state or federal Constitutions entitle indigent parents to representation when appealing decisions adversely affecting their parental rights. (In re Bryce C. (1995) 12 Cal.4th 226, 235 [48 Cal.Rptr.2d 120, 906 P.2d 1275]; In re Jacqueline H., supra, 21 Cal.3d 170, 178.) Because I conclude that the Legislature intended the appellate courts to adopt the Anders/Wende procedures to protect the statutory right to counsel of indigent parents, I need not consider whether those procedures are necessary to implement any constitutional right to counsel on the part of indigent parents.

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Opinion — Mosk

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Dissent — Kennard

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