Opinion
F073004
01-27-2017
Conservatorship of the Estate of JOHN E. TULARE COUNTY PUBLIC GUARDIAN, Plaintiff and Respondent, v. JOHN E., Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum and Jason G. Chu, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VPR046139)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Melinda M. Reed, Judge. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum and Jason G. Chu, Deputy County Counsel, for Plaintiff and Respondent.
Before Kane, Acting P.J., Franson, J. and Smith, J.
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This appeal presents the procedural issue of whether the Court of Appeal is required to conduct an independent review of the appellate record under Anders/Wende procedures where the appeal is taken from orders entered after a conservatorship over an estate has been terminated. Such orders include approvals of final accountings and fee applications by conservators. We conclude the Anders/Wende procedures do not apply to appeals of such orders.
Our Supreme Court used the phrase "Anders/Wende procedures" to refer to the independent review of the appellate record conducted by the Court of Appeal to determine whether any arguable appellate issue exists when appointed counsel informs the court that he or she has found no such issues. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 (Ben C.); see Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).)
In Ben C., supra, 40 Cal.4th 529, our Supreme Court concluded the Anders/Wende procedures did not apply in an appeal from the imposition of a conservatorship over the person under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.). The court also has concluded the Anders/Wende procedures do not apply to an indigent parent's appeal from a juvenile court decision affecting child custody or parental status. (In re Sade C. (1996) 13 Cal.4th 952, 959 (Sade C.).) These holdings were based on the court's balancing of three factors: (1) the private interests at stake; (2) the state's interests involved; and (3) the risk that absence of the procedures in question would lead to an erroneous resolution of the appeal.
Based on Ben C. and Sade C., we conclude the Anders/Wende procedures do not apply to appeals from orders entered after a conservatorship over an estate has been terminated.
Here, appointed counsel (1) advised this court he found no arguable issues; (2) filed a brief setting forth the facts of this case; (3) advised appellant of the nature of the brief and provided him a copy; and (4) advised appellant that he could file a supplemental brief. Thus, appellant has been given notice and an opportunity to inform this court of any issues or claims of trial court error he believes should be addressed. Appellant, however, filed no supplemental brief, no reply brief and has not otherwise communicated with this court. As a result, no issues involving the challenged orders have been identified or presented to this court.
We therefore dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Appellant John E. was born in June 1945 in Visalia and grew up on a farm in the San Joaquin Valley. He farms citrus and fell behind on his property taxes.
In January 2013, the Tulare County Public Guardian filed a petition for temporary probate conservatorship over appellant's estate, which was granted and subsequently made permanent. At the time, the County of Tulare was poised to seize appellant's citrus grove and sell it to pay back taxes. The stated purpose of the conservatorship was to pay the taxes owed and to prevent the loss of the property. In June 2013, the public guardian also was granted special powers relating to the day-to-day management of appellant's citrus grove.
In May 2015, the public guardian filed a petition to dismiss the conservatorship on the grounds that its purpose had been accomplished. The petition to dismiss was supported by a special forensic psychological assessment evaluation of appellant that found he was in full capacity and capable of managing his own estate and other financial affairs. The assessment addressed a stroke that allegedly affected appellant's judgment by stating he was functioning cognitively at a very high level and there did not appear to be any lingering effects of the stroke that might impact his reasoning ability or decision making.
Because an appeal was pending at that time, the trial court determined it lacked jurisdiction to consider the request to terminate the conservatorship. As a result, appellant dismissed that appeal, the public guardian refiled the petition to dismiss, and the trial court then issued an order in July 2015 terminating the conservatorship over the estate.
The appeal (case No. F071123) was taken from orders entered on February 17, 2015, that denied appellant's petition to dismiss the conservatorship and granted the public guardian's petition to extend independent powers relating to the operation of the citrus enterprise. --------
In September 2015, the public guardian filed an accounting and requested an allowance of fees. The public guardian asked for $31,257 as fees for services rendered plus $250 for legal services provided by the public defender. In October 2015, the public guardian filed a supplemental accounting.
In November 2015, the trial court held a hearing and, at the close of the hearing, approved the accountings and awarded fees. Later in November, the trial court signed a written order (1) identifying the estate's cash balance; (2) allowing the public guardian fees of $10,000 for service rendered; (3) awarding $250 in fees to the public defender for legal services provided to appellant; (4) directing the reimbursement of $1,500 paid by the public defender for the psychological evaluation of appellant; and (5) discharging and releasing the public guardian from liability.
In December 2015, appellant filed a notice of appeal stating he appealed "all orders issued by this court following the termination of his conservatorship in this matter." The notice of appeal also stated appellant "cannot afford to hire counsel on appeal and hereby requests the appointment of an attorney to represent him."
In 2016, appellant's appointed counsel filed a brief stating he could not find any arguable issues on appeal and asked this court to conduct an independent review of the record under the Anders/Wende procedures. In October 2016, this court ordered appellant to file a supplemental brief clarifying his arguments relating to the Anders/Wende procedures.
In November 2016, appointed counsel filed the brief. The brief included a declaration of counsel stating he had provided his client with a copy of the brief and advised his client of the nature of that brief. Appointed counsel also advised appellant that he could file a supplemental opening brief within 30 days of the filing of counsel's brief and sent appellant a copy of the record on appeal to assist him. Appointed counsel also told appellant that he could file a request for this court to remove the appointed counsel as his attorney in the appeal.
Respondent Tulare County Public Guardian subsequently filed a brief arguing the Anders/Wende procedures did not apply to this appeal. Respondent requested the appeal be dismissed without a written opinion.
DISCUSSION
I. APPLICATION OF ANDERS/WENDE PROCEDURES
As discussed in the introduction, our Supreme Court refused to extend the Anders/Wende procedures to the imposition of a conservatorship over the person in Ben C. (See People v. Kisling (2015) 239 Cal.App.4th 288, 290 [Anders/Wende procedures not applicable to appeals from denials of petitions for release from sexually violent predator commitment].) That precedent would be difficult to reconcile with an extension of the Anders/Wende procedures to appeals of orders relating to a conservatorship over an estate (not a person) where the conservatorship has been terminated rather than imposed.
Consequently, we conclude the Anders/Wende procedures should not be extended to this appeal. The conservatorship over appellant's estate has been terminated and the orders challenged on appeal direct the payment of fees to the conservator and the reimbursement of other expenses. II. DISMISSAL
Having resolved the procedural issue and concluded an independent review of the record to identify arguable issues is not required, we must decide what the next step in this appeal should be. We conclude that dismissal is appropriate. (See People v. Kisling, supra, 239 Cal.App.4th 288, 290, 292 [appeal was dismissed after court concluded Anders/Wende procedures did not apply].) First, appellant was notified that appointed counsel was unable to identify an arguable issue to present on appeal and informed that he could submit his own brief to the court. Second, appellant did not file any brief or otherwise inform this court of his grounds for challenging the orders entered after the termination of the conservatorship. Third, the fees awarded ($10,000) were less than one-third of the fees requested by the guardian ($31,257.05), which shows the trial court did not simply rubberstamp the fee request. Fourth, appellant did not file a reply brief.
Therefore, appellant has not identified an issue that arguably would entitle him to some relief on appeal and, as a result, dismissal of the appeal is appropriate.
DISPOSITION
The appeal is dismissed.