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In re C.S.

California Court of Appeals, Sixth District
Apr 24, 2009
No. H033538 (Cal. Ct. App. Apr. 24, 2009)

Opinion


In re C.S., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN RESOURCES AGENCY, Plaintiff and Respondent, v. N.G., Defendant and Appellant. H033538 California Court of Appeal, Sixth District April 24, 2009

NOT TO BE PUBLISHED

RUSHING, P.J.

Appellant N.G., mother of C.S., a four year-old girl, appeals from a juvenile court jurisdictional and dispositional order pursuant to Welfare and Institutions Code section 300. The Santa Cruz County Human Resources Agency (Agency) filed a petition pursuant to Section 300, alleging that C.S.’s mother failed to protect her. The petition alleged that the Agency had originally become involved with this family in February 2008 when C.S.’s father, who was the subject of a restraining order prohibiting him from having contact with the mother and their two children, violated the restraining order. Despite this restraining order, the mother had allowed the father to spend the night, after which the father took the two children from the mother. When the agency investigated, the mother alleged that there had been a history of domestic violence between her and the father which she had never reported. The father, who had a criminal history, denied the domestic violence allegations but alleged that the mother was using methamphetamines. After a satisfactory home visit, the social worker admonished the mother to abide by the restraining order and referred the mother to a local agency for domestic violence counseling. Thereafter, the referral was closed.

All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

In April, the Agency received another referral reporting that the father had been shot in the head, and the mother was arrested and incarcerated on a felony count of Penal Code 32, accessory after the fact. The Santa Cruz County Sheriff’s Department investigation revealed that on the day of the shooting, the mother had been traveling in a pickup truck driven by her current boyfriend’s best friend. When the father pulled up to the pickup truck in another car, the driver of the pickup truck shot the father in the head. After being in a coma for a period of time, the father has substantially recovered, but still uses a wheelchair and must receive continued physical and occupational therapy for his injuries.

While the mother was in jail, the children stayed with a maternal relative, and after her release she made plans to live with her mother and sister. The social worker determined that the children were safe with the mother and the second referral was closed.

Thereafter, in June, C.S.’s sister died while the mother and children were living in the home of the mother’s current boyfriend’s family. Pending the coroner’s investigation, the mother and the social worker agreed that C.S. should live apart from the mother with mother’s sister, C.S.’s maternal aunt. Thereafter, the coroner determined that the death was due to natural causes, specifically, Klebsiella Pneumoniae Septicemia and Adrenal Cortical Hypoplasia.

Upon further investigation, the Agency discovered that the mother had previously threatened to kill herself and her children if the father left her, and that the father, who had a significant criminal history in both Santa Cruz and Monterey Counties, was a member of the Norteno Criminal Street Gang. Based on this additional information, the long history of conflict and domestic violence between the mother and father and the fact that, despite her agreement to the contrary, the mother had been living with C.S. in the aunt’s home, the Agency determined that C.S. was not safe in the aunt’s home. C.S. was taken into protective custody and placed in a foster home.

On August 8, the juvenile court ordered the minor detained and ordered both the mother and father to submit to drug testing. Because of the mother’s refusal to drug test, the father’s ongoing physical disabilities related to the shooting, the restraining order prohibiting contact between the father and the child and the animosity between the parents and their respective families as a result of the shooting, the Agency determined that returning the child to the mother or placing the child with her father or another relative would pose a danger to the child. Therefore, the Agency recommended continuation of the child’s out-of-home placement. On September 5, 2008, at the dispositional hearing, the juvenile court found the petition to be true, declared the child a dependent of the court, and adopted the Agency’s recommendations to remove the child from parents’ custody and place her in foster care. The court ordered reunification services be provided to both parents. This timely appeal ensued.

We appointed counsel to represent appellant in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues. (In re Sade C. (1996) 13 Cal.4th 952 (Sade C.).) In the opening brief, counsel acknowledged that this court has no duty to independently review the record pursuant to People v. Wende, but requested that we allow appellant the opportunity to submit a brief in propria persona pursuant to Conservatorship of Ben C., (2007) 40 Cal.4th 529, 543, 544 (Ben C.).

People v. Wende (1979) 25 Cal.3d 436.

In In re Sara H. (1997) 52 Cal.App.4th 198 (Sara H.), analyzing the Supreme Court’s reasoning in Sade C., we held that the proper course of action in a juvenile dependency case, where counsel finds no meritorious appellate issue upon scrutiny of the record, is to deem the appeal abandoned and to dismiss it. (Id. at pp. 201-202.) We held that we do not have discretion to review the record, under any circumstance. (Id. At p. 201.) The two foundational principals underlying the holdings in both Sara H. and Sade C. are the need for speedy resolutions in dependency cases, and the recognition that independent review of the record causes intolerable delay. (Ibid.) Despite these holdings, appellant’s counsel urges us to adopt the procedure articulated in Ben C. In Ben C. the Supreme Court held that where counsel has filed a no issue brief in a conservatorship proceeding, before dismissing the appeal as abandoned, the appellant should have the opportunity to submit a supplemental letter brief in propria persona. (Ben C., supra, 40 Cal.4th at p. 544, fn. 6.)

Although Ben C. was a conservatorship proceeding, the rights implicated in a dependency proceeding are, at least, equally fundamental. Further, in the past, where counsel in a dependency case was preparing to file a “no issue” letter pursuant to Sade C., we have allowed the appellant to file a motion to vacate the appointment of counsel so that they could file a brief in propria persona. We have often granted these motions, recognizing the fundamental nature of the rights at stake in dependency appeals as well as the due process implications of allowing an appellant adequate access to the appellate court.

Realistically, the process of allowing the appellant to file a motion to vacate counsel’s appointment and then file a supplemental brief, as we have done in the past, would likely take as long if not longer than directly notifying the appellant that he has the right to file a supplemental brief. Therefore, there is no actual prejudice to the dependent child due to any delay caused by allowing the appellant an opportunity to file a supplemental brief in propria persona. In balancing the due process interests of the appellant with the child’s need for expeditious finality, we find that appellant should be afforded an opportunity to file a supplemental letter brief in propria persona.

Based on this conclusion, we notified appellant of her right to submit written argument in her own behalf within 30 days. That period has elapsed and we have received no written argument from her. Respondent requests that we dismiss the appeal.

The appellant having failed to raise any issue on appeal, the appeal must be dismissed as abandoned. (Ben C., supra, 40 Cal.4th 529; Sade C., supra, 13 Cal.4th 952.)

DISPOSITION

The appeal is dismissed as abandoned.

WE CONCUR: PREMO, J., ELIA, J.


Summaries of

In re C.S.

California Court of Appeals, Sixth District
Apr 24, 2009
No. H033538 (Cal. Ct. App. Apr. 24, 2009)
Case details for

In re C.S.

Case Details

Full title:In re C.S., a Person Coming Under the Juvenile Court Law. SANTA CRUZ…

Court:California Court of Appeals, Sixth District

Date published: Apr 24, 2009

Citations

No. H033538 (Cal. Ct. App. Apr. 24, 2009)