Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. Nos. JD17214, JD17215, JD17881
PREMO, J.
T.A., Sr. (father), and T.A. (mother), appeal from orders of the juvenile court terminating their parental rights to their children T.A., Jr. (born 2004), J.A. (born 2005), and M.A. (born 2007) and selecting adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.) We appointed counsel to represent each appellant in this court.
Appointed counsel filed opening briefs which state the case and the facts but raise no specific issues. (See In re Sade C. (1996) 13 Cal.4th 952 (Sade C.).) They ask 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 appellants to file their own supplemental briefs. 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 appellants have submitted identical letter briefs. We have read and considered them. Since neither appellants nor counsel have raised an arguable issue, we dismiss the appeal.
BACKGROUND
The two oldest children came to the attention of the juvenile court because of neglect as a result of the parents’ substance abuse and domestic violence. The juvenile court adjudged them to be dependents, ordered reunification services, and later terminated the services. After the youngest child was born, the juvenile court adjudged him to be a dependent, consolidated his case with his two siblings, and denied reunification services. The juvenile court later held a contested dispositional hearing and rendered the order from which appellants appeal.
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.” (Id. 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 appellants 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. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; 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 appellants of their rights to submit written argument within 30 days. Appellants submitted letters. We have read and considered them. In them, appellants ask a series of questions of this court rather than identify and support a claim of legal error that pertains to the judgment under attack. The underlying points are neither developed, tied to the record, supported by authority, 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 (5th ed. 2008) Appeal, § 701, p. 769.)
“The purpose of requiring headings and coherent arguments in appellate briefs is ‘to lighten the labors of the appellate [courts] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.’ ” (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1831, fn. 4.) Stated another way, we must be provided with analysis or discussion, supported by pertinent authority, which discloses to us the course of logical or legal reasoning by which an appellant comes to the conclusions he or she wants us to adopt. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [“[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant’s [contentions] as waived”]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [appellate court “will not develop the appellants’ arguments for them”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must be supported by “argument and, if possible, by citation of authority”]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 9:21, p. 9-6 (rev. #1 2007) [“appellate court can treat as waived any issue that, although raised in the briefs, is not supported by pertinent or cognizable legal argument or proper citation of authority”].)
To the extent that appellants’ underlying points are evidentiary, they 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].)
Moreover, “[a]rguments should be tailored according to the applicable standard of appellate review.” (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388.) Failure to acknowledge the proper scope of review is a concession of a lack of merit. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) “ ‘[I]t is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent. An appellant is not permitted to evade or shift his [or her] responsibility in this manner.’ ” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.)
Absent compliance with these rules, we presume that the judgment of the trial court is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Appellants are clearly dissatisfied by the result in this case but they have made no argument that would allow us to reverse it. Since neither appellants nor their attorneys have made any colorable assertions of error we 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. ELIA, J.