San Mateo County Youth & Family Services Department v. Allan E.

Opinion

HANLON, J. This is an appeal from a dispositional order entered on March 21, 1995, in a juvenile dependency proceeding pursuant to Welfare [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 re Joyleaf 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 in Anders 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, 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 to Wende 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 re Brian 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.