Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. Nos. DP001636, DP001637, DP001638, DP001639, DP001640.
Premo, J.
Jacob O., Sr., appeals from orders of the juvenile court dismissing the dependency cases of his children, Jacob O., Jr., Jebidiah O., Rachel O., Diana O., and Miriam O. We appointed counsel to represent appellant in this court.
Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. (See In re Sade C. (1996) 13 Cal.4th 952 (Sade C.).) He asks this court to follow the procedure set forth in Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, footnote 6 (Ben C.), by inviting appellant to file his own supplemental brief. The Santa Cruz County Human Resources Agency (Agency) opposes the request, arguing that Ben C. does not require us to solicit supplemental briefs from appellants in dependency cases. The question of whether the appellate court must solicit supplemental briefing directly from the appellants in dependency cases is presently before our Supreme Court. (In re Phoenix H., review granted Oct. 10, 2007, S155556.) Regardless of the answer to the question, we solicited and appellant has submitted a letter brief. We have read and considered it. Since neither appellant nor his counsel has raised an arguable issue, we dismiss the appeal.
background
The children came to the attention of the juvenile court because their mother had been arrested for battering appellant and appellant’s mental health issues prevented him from caring for the children. The juvenile court adjudged the children to be dependents and placed them with their mother. It ordered visitation for appellant. The mother moved with the children to Modesto. The juvenile court later dismissed the cases on the Agency’s recommendation over appellant’s objection that the children were at risk.
discussion
In the first appeal of right in a criminal case, where appointed counsel’s opening brief raises no arguable issues, Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende), require the appellate court to independently review the record to determine if there are any legal points arguable on their merits. Sade C. very clearly held that the basis for the Anders/Wende “independent review” procedure was not applicable to dependency appeals and should not be extended to apply to dependency appeals. (Sade C., supra,13 Cal.4th at pp. 981-994.) Sade C. reasoned that dependency appeals did not merit independent review because, among other things, “[w]hatever the benefits in ensuring that appointed appellate counsel conduct themselves as active advocates . . . the costs are greater.” (Sade C., supra,13 Cal.4th at p. 993; see also In re Sara H. (1997) 52 Cal.App.4th 198, 200 (Sara H.) [stressing the need for prompt resolution of dependency appeals and rejecting the argument that Anders/Wende review is discretionary in such cases].) Thus, under Sade C., we do not independently review the record in a case such as this one as we would if this were the first appeal in a criminal case.
In the first appeal of right in a criminal case, the Anders/Wende process also requires that the appellant be given an opportunity to raise any issues he or she thinks should be considered. “[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.” (Anders, supra, 386 U.S. at p. 744, italics added.)
Wende clarified that, where counsel has not been disqualified by representing the appeal as frivolous, counsel need not seek leave to withdraw. (Wende, supra, 25 Cal.3d at p. 442.)
Although Ben C. held that the independent-review prong of the Anders/Wende process does not apply to conservatorship cases, the court stated in a footnote that when counsel in a conservatorship proceeding cannot find an arguable issue, “The conservatee is to be provided a copy of the brief and informed of the right to file a supplemental brief.” (Ben C., supra,40 Cal.4that p. 544, fn. 6.) The court did not elaborate on this instruction but we have since treated it as a directive and routinely solicit such briefs from conservatees in conservatorship cases. Sade C. did not consider whether such a process should be used in dependency cases because counsel there had advised the parents that they could file supplemental briefs and they chose not to do so. (Sade C., supra, 13 Cal.4th at p. 962.) The question, therefore, is whether footnote 6 of Ben C. should be extended to dependency appeals.
In 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. (Sara H., supra,52 Cal.App.4th at pp. 201-202 .) We also held that we do not have discretion to review the record, under any circumstance. (Id. at p. 201.) The holdings in Sade C. and Sara H. arise out of the often expressed need for speedy resolution of dependency cases and the inherent delay that an independent review of the record could cause. (Ibid.)
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 appellants 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 implication 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 or she has the right to file a supplemental brief. Therefore, there is no actual prejudice to the dependent child as a result of 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 interests of 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.
But when a litigant appears in propria persona, he or she is held to the same restrictive rules of procedure and evidence as an attorney--no different, no better, no worse. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160-161.)
Based on this conclusion, we notified appellant of his right to submit written argument in his own behalf within 30 days. Appellant submitted a letter. We have read and considered it. In it, appellant complains that the Agency took the children without cause. He also claims that his counsel was ineffective because she failed to (1) listen to him, (2) request a continuance, and (3) listen to his tape-recorded evidence demonstrating the mother’s abusive nature. He further urges that the trial court erred by failing to order a psychological evaluation for the mother as it did for him. He finally complains that the children’s attorney did not converse with him as that attorney did with the mother.
Appellant’s points are neither developed, tied to the record, nor tailored to a scope of review. “The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627; see Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must support any reference to a matter in the record by a citation to the record where the matter appears]; Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388 [“[a]rguments should be tailored according to the applicable standard of appellate review”].) To the extent that appellant’s points are evidentiary, the arguments overlook the contrary evidence in the record. (Estate of Palmer (1956) 145 Cal.App.2d 428, 431 [an attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent].)
Appellant is clearly dissatisfied by the result in this case but he has made no argument that would allow us to reverse it. Accordingly, neither appellant nor his appellate attorney has made any colorable assertions of error. We therefore conclude that they have implicitly abandoned the appeal and that dismissal is the appropriate disposition. (Sara H., supra,52 Cal.App.4th at p. 202.)
disposition
The appeal is dismissed.
WE CONCUR: Rushing, P.J., Bamattre-Manoukian, J.