Supreme Court of California Justia
Citation 47 Cal. 4th 835, 220 P.3d 524, 102 Cal. Rptr. 3d 481

In re Phoenix H.

Filed 12/21/09

IN THE SUPREME COURT OF CALIFORNIA

IN RE PHOENIX H. et al., Persons Coming )
Under the Juvenile Court Law.
____________________________________)

SAN DIEGO COUNTY HEALTH AND
S155556
HUMAN SERVICES AGENCY,
Ct.App. 4/1 D050304
Plaintiff and Respondent,
San Diego County
v.
Super. Ct. No. SJ11392
M. H.,
Defendant and Appellant.
____________________________________)

In People v. Wende (1979) 25 Cal.3d 436, 441, we held that when
appointed counsel in an appeal from a criminal conviction files a brief raising no
issues, the appellate court must review the entire record to determine whether
there are any arguable issues. In In re Sade C. (1996) 13 Cal.4th 952, 981-982, we
held that such a review of the entire record is not required in an appeal like that in
the present case from a juvenile court order affecting parental rights when
appointed counsel for the parent files a brief raising no issues. We similarly held
in Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 that when appointed
counsel in an appeal from the imposition of a conservatorship files a brief raising
no issues, a review of the entire record is not required, but we added in a footnote:
1


―The conservatee is to be provided a copy of the brief and informed of the right to
file a supplemental brief.‖ (Id. at p. 544, fn. 6.)
In the present case, appointed counsel for a parent whose parental rights
were terminated by the juvenile court filed a brief raising no issues, but asked the
court to permit the parent to personally file a supplemental brief. The Court of
Appeal denied the request and dismissed the appeal. For the reasons that follow,
we conclude that the Court of Appeal did not abuse its discretion in denying the
parent‘s request to personally file an additional brief and properly dismissed the
appeal.
FACTS
On January 31, 2007, the juvenile division of the San Diego Superior Court
terminated M. H.‘s parental rights to her sons, 2-year-old Phoenix and 1-year-old
Dakota, and chose adoption as the permanent plan pursuant to Welfare and
Institutions Code section 366.26, subdivision (b)(1). M. H. filed a timely notice of
appeal. Her appointed counsel filed a 30-page opening brief that described in
detail the procedural history and facts of the case but raised ―no specific arguable
issues‖ on appeal. Rather, counsel asked the Court of Appeal to exercise its
discretion to independently review the entire record on appeal to determine
whether reversible errors were made. In addition, counsel requested that the Court
of Appeal provide M. H. ―the opportunity to file her own supplemental brief
within 30 days.‖
The Court of Appeal ―decline[d] to review the record independently for
error.‖ The court concluded that it had ―inherent discretion‖ to permit M. H. to
file an additional brief in propria persona, but found ―no reason to allow it in this
case.‖ In a footnote, the court observed that the First, Second, and Fifth Districts,
as well as two divisions of the Fourth District, ―allow a parent 30 days to file a
supplemental brief in propria persona. The Third and Sixth Districts do not allow
2
supplemental briefing.‖ The Court of Appeal denied the parent‘s request to
personally file a brief and dismissed the appeal. We granted review.
DISCUSSION
On appeal from a juvenile court‘s order terminating parental rights, the
parent has a statutory right to appointed counsel. (Fam. Code, § 7895.) In the
present case, counsel was appointed to represent M. H. on appeal, but did not
identify any issues to argue. Both the United States Supreme Court and this court
have considered in several contexts what procedures should be followed when
counsel appointed to represent an indigent client on appeal concludes there are no
arguable issues to raise.
More than 40 years ago, in Anders v. California (1967) 386 U.S. 738, an
attorney appointed by the California Court of Appeal to prosecute a criminal
defendant‘s first appeal as of right from a conviction for felony possession of
marijuana determined that the appeal had no merit. The attorney filed a letter with
the court that stated: ― ‗I will not file a brief on appeal as I am of the opinion that
there is no merit to the appeal. I have visited and communicated with Mr. Anders
and have explained my views and opinions to him . . . . (H)e wishes to file a brief
in this matter on his own behalf.‘ ‖ (Id. at p. 742.) The defendant asked the court
to appoint another attorney, but the court declined. The defendant then filed a
brief in propria persona. The Court of Appeal affirmed the judgment of
conviction. (Id. at pp. 739-740.)
The high court ruled that Anders had been denied his right to counsel,
concluding that ―counsel‘s bare conclusion, as evidenced by his letter, was not
enough‖ because this procedure was not ― ‗an adequate substitute for the right to
full appellate review available to all defendants‘ who may not be able to afford
such an expense.‖ (Anders v. California, supra, 386 U.S. at pp. 742-743.) The
high court observed that ―California‘s procedure did not furnish petitioner with
3
counsel acting in the role of an advocate nor did it provide that full consideration
and resolution of the matter as is obtained when counsel is acting in that capacity.‖
(Id. at p. 743.) The court in Anders then described how appointed counsel and the
Court of Appeal should have proceeded: ―Counsel should, and can with honor and
without conflict, be of more assistance to his client and to the court. His role as
advocate requires that he support his client‘s appeal to the best of his ability. Of
course, if 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.
If it so finds it may grant counsel‘s request to withdraw and dismiss the appeal
insofar as federal requirements are concerned, or proceed to a decision on the
merits, if state law so requires. On the other hand, if it finds any of the legal
points arguable on their merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue the appeal.‖ (Id. at
p. 744, fn. omitted.)
In People v. Wende, supra, 25 Cal.3d 436, we followed the holding in
Anders that the appellate court must examine the entire record when appointed
counsel in a criminal case determines there is no merit to the defendant‘s first
appeal as of right, but we diverged from the decision in Anders by holding that
counsel need not withdraw from the case.
Wende was convicted of robbery. His appointed counsel on appeal ―filed a
brief which set forth a summary of the proceedings and facts with citations to the
transcript, raised no specific issues, and called upon the court to make a thorough
4
review of the entire record to determine for itself whether there were any arguable
issues. Counsel also submitted a declaration stating that he had advised defendant
of the nature of the brief, that he would send defendant a copy of the brief, and
that he had informed defendant that the court would permit him to file a brief on
his own behalf. Counsel also stated that he was not requesting to withdraw but
that he would advise defendant that he could move to have counsel relieved if he
so desired.‖ (People v. Wende, supra, 25 Cal.3d at p. 438.) The Court of Appeal
dismissed the appeal without conducting a review of the entire record. (Ibid.) The
People argued that the Court of Appeal was not required to review the entire
record because, unlike in Anders, the defendant had not filed a brief in propria
persona. (Id. at p. 440.)
We held that the Court of Appeal must ―conduct a review of the entire
record whenever appointed counsel submits a brief which raises no specific issues
or describes the appeal as frivolous. This obligation is triggered by the receipt of
such a brief from counsel and does not depend on the subsequent receipt of a brief
from the defendant personally.‖ (People v. Wende, supra, 25 Cal.3d at pp. 441-
442.) We further held that counsel was not required to seek leave to withdraw ―so
long as he has not described the appeal as frivolous and has informed the
defendant that he may request the court to have counsel relieved if he so desires.‖
(Id. at p. 442, fn. omitted.) This court reviewed the entire record and found no
arguable issues. We declined to dismiss the appeal, stating: ―In view of the fact
that we have made a thorough review of the merits and have heard argument on
the case, we deem it appropriate to affirm the judgment rather than dismiss the
appeal as frivolous. Once the record has been reviewed thoroughly, little appears
to be gained by dismissing the appeal rather than deciding it on its merits.‖ (Id. at
p. 443).
5
We later considered in People v. Kelly (2006) 40 Cal.4th 106 the
obligations of the appellate court in a criminal case when appointed counsel files a
Wende brief, the defendant then personally files a letter or supplemental brief, but
the court determines nonetheless there are no arguable issues. We held that the
appellate court must address the defendant‘s contentions in a written opinion:
―We conclude that a decision affirming the judgment in a Wende appeal disposes
of a cause within the meaning of article VI, section 14, of the California
Constitution, and therefore must be in writing with reasons stated.[1] Because the
defendant in a Wende appeal has a right to file supplemental contentions, the Court
of Appeal must consider these contentions in the course of disposing of the cause.
Therefore, to comply with the constitutional mandate, the opinion must reflect the
defendant‘s contentions and the reasons that they fail.‖ (Id. at pp. 109-110.) We
reasoned that ―when a Court of Appeal affirms a judgment in a Wende appeal in
which the defendant has filed supplemental contentions, the appellate court
necessarily must have considered and rejected those contentions. In accordance
with the constitutional requirement of ‗reasons stated,‘ such an opinion must
reflect the contentions and the reasons that they fail, just as the opinion would
reflect those points if they were raised by counsel.‖ (Id. at p. 120.)
In In re Sade C., supra, 13 Cal.4th at pages 981-982, however, we held that
the procedures required in criminal appeals by our decision in Wende are not
required in an appeal from an order of the juvenile court affecting parental rights.
Sade C. arose from two appeals from indigent parents for whom counsel had been
appointed. Appointed counsel in each case filed a brief that summarized the

1
Article VI, section 14 of the California Constitution states, in part:
―Decisions of the Supreme Court and courts of appeal that determine causes shall
be in writing with reasons stated.‖
6


procedural and factual history of the case but raised no arguable issues and asked
the court to ― ‗independently review the entire record on appeal‘ ‖ for any arguable
issue. (Id. at pp. 962, 964, 965.) In each case, counsel had advised the parent that
he or she could ― ‗file a supplemental brief with the court within 30 days,‘ ‖ but
neither parent filed such a brief. (Id. at p. 962; see also id., at pp. 964-965.) The
Court of Appeal declined to conduct an independent review of the record in each
case and dismissed the appeals as abandoned. We affirmed the judgment of the
Court of Appeal.
Although we recognized that an indigent parent has a fundamental ― ‗liberty
interest . . . in the care, custody, and management of‘ his child,‖ and thus has a
derivative liberty interest ―in the ‗accuracy and justice‘ [citations] of the resolution
of his appeal,‖ we also observed ―that the appealed-from decision, which is
adverse to the parent and is predicated on detriment he caused or allowed his child
to suffer, is presumptively accurate and just. [Citation.]‖ (In re Sade C., supra, 13
Cal.4th at pp. 987-988.) Further, the child has an important liberty interest ―in a
‗normal family home‘ ‖ that may conflict with the parent‘s interests. (Id. at
p. 988.) ―What the parent wants or needs is not necessarily what the child wants
or needs.‖ (Id. at p. 989.) We observed: ― ‗There is little that can be as
detrimental to a child‘s sound development as uncertainty over whether he is to
remain in his current ―home,‖ . . . especially when such uncertainty is prolonged.‘
[Citation.]‖ (Id. at p. 988.) We relied, in part, on the state‘s interest in expediting
juvenile proceedings, noting that ―[p]roceedings such as these ‗must be concluded
as rapidly as is consistent with fairness . . . .‘ [Citation.] A ‗period of time‘ that
‗may not seem . . . long . . . to an adult . . . can be a lifetime to a young child.‘
[Citation.] ‗Childhood does not wait . . . .‘ ‖ (Id. at p. 990.)
We recognized that there was a risk that dispensing with the prophylactic
procedures required in criminal appeals by the decisions in Anders and Wende
7
could lead to an erroneous resolution of the indigent parent‘s appeal, but
concluded: ―As a practical matter, we believe that the chance of error is
negligible.‖ (In re Sade C., supra, 13 Cal.4th at p. 990.) We recounted that ―our
consideration of the many cases that have come before us on petition for review
reveals that appointed appellate counsel faithfully conduct themselves as active
advocates in behalf of indigent parents. This causes no surprise: the attorneys are
enabled, and indeed encouraged, to effectively represent their clients . . . .‖ (Ibid.)
We noted the statement of Division One of the Fourth Appellate District of the
Court of Appeal that in more than a decade the court had ― ‗discovered, to the best
of our present recollection, no unbriefed issues warranting further attention.‘
[Citation.]‖ (Ibid.) We concluded, therefore, that the value of applying the
procedures required by our decision in Wende in criminal appeals to appeals
affecting an indigent parent‘s parental rights were ―too slight to compel their
invocation.‖ (Id. at p. 911.)
We thus held in Sade C. that the Court of Appeal properly dismissed the
indigent parents‘ appeals. Unlike in a criminal case in which an indigent
defendant‘s first appeal as of right remains a ―cause‖ that must be resolved in a
written opinion ―with reasons stated‖ even after appointed counsel files a Wende
brief (People v. Kelly, supra, 40 Cal.4th 106, 119-120), we held that the Court of
Appeal could dismiss an indigent parent‘s appeal if appointed counsel filed a brief
raising no arguable issues. (In re Sade C., supra, 13 Cal.4th at p. 994.)
In light of our decision in Sade C., the parent in the present case, M. H.,
does not argue, and could not reasonably argue, that the Court of Appeal erred in
denying her request that the court independently review the entire record for error.
But relying upon a footnote in our decision in Conservatorship of Ben C., supra,
40 Cal.4th 529 (Ben C.), M. H. argues that the Court of Appeal was required to
permit her to personally file an additional brief.
8
We held in Ben C., supra, 40 Cal.4th 529, 535, that the procedures required
by our decision in Wende do not apply to an appeal from the imposition of a
conservatorship under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000
et seq.). Having concluded that the procedures described in our decision in Wende
did not apply, we offered ―the following guidance for the Courts of Appeal. If
appointed counsel in a conservatorship appeal finds no arguable issues, counsel
need not and should not file a motion to withdraw. Instead, counsel should (1)
inform the court he or she has found no arguable issues to be pursued on appeal;
and (2) file a brief setting out the applicable facts and the law. Such a brief will
provide an adequate basis for the court to dismiss the appeal on its own motion.‖
(Ben C. at p. 544, fns. omitted.) In a footnote, we added: ―The conservatee is to
be provided a copy of the brief and informed of the right to file a supplemental
brief.‖ (Id. at p. 544, fn. 6.)
We did not explain the basis for requiring that the conservatee in Ben C. be
permitted to personally file a supplemental brief, but Chief Justice George
concluded in his dissent that the court relied upon its supervisory powers,
observing that ―it appears that the majority has decided to exercise this court‘s
supervisory powers to impose upon the Courts of Appeal all of the Anders/Wende
procedures except the requirement that the appellate court review the record.‖ (Id.
at p. 555 (dis. opn. of George, C. J.).)
The state‘s interest in expediting juvenile proceedings in order to promptly
achieve a permanent placement for the child causes us to reach a different
conclusion in this case than we did in Ben C. As we did in the conservatorship
proceedings at issue in Ben C., we direct the Court of Appeal that appointed
counsel for a parent in an appeal from an order of the juvenile court affecting
parental rights who finds no arguable issues need not and should not file a motion
to withdraw, but should (1) inform the court he or she has found no arguable
9
issues to be pursued on appeal, (2) file a brief setting out the applicable facts and
the law, and (3) provide a copy of the brief to the parent. But unlike in the
conservatorship proceedings at issue in Ben C., the Court of Appeal is not required
to permit the parent to file an additional brief absent a showing of good cause.
When an appellant is being held pursuant to a conservatorship under the
Lanterman-Petris-Short Act, it does no harm to permit the conservatee to file a
supplemental brief. The delay that would result affects only the conservatee who
has chosen to file an additional brief. The same is not true in an appeal like the
one in the present case from a juvenile court order terminating parental rights
―where a child may be awaiting resolution of his or her status and is being denied
a final, stable placement . . . .‖ (Ben C., supra, 40 Cal.4th at p. 548 (dis. opn. of
George, C. J.).)
Unnecessary delay must be avoided in an appeal from a juvenile court order
terminating parental rights, to protect the child‘s interest in securing a permanent
placement as soon as possible. For this reason, appeals by parents from orders of
the juvenile court terminating parental rights are given priority. (Welf. & Inst.
Code, § 395, subd. (a)(2) [―The appeal shall have precedence over all other cases
in the court to which the appeal is taken.‖].) The reason for expediting such
proceedings is that the child cannot be adopted until the appeal is final. (Welf. &
Inst. Code, § 366.26, subd. (b)(1) [―The court shall proceed with the adoption after
the appellate rights of the natural parents have been exhausted.‖]; § 366.26, subd,
(j) [―a petition for adoption may not be granted until the appellate rights of the
natural parents have been exhausted‖].)
The delay that would ensue from requiring the Court of Appeal to permit an
indigent parent to personally file a brief after appointed counsel has determined
there are no arguable issues, absent a showing of good cause, would not be
justified by an increase in fairness or accuracy of the proceedings. As noted
10
above, once appointed counsel for an indigent parent has concluded there are no
arguable issues, ―the chance of error is negligible‖ and the value of applying the
procedures required by our decision in Wende in criminal appeals is ―too slight to
compel their invocation.‖ (In re Sade C., supra, 13 Cal.4th at pp. 990, 911.)
Similarly, any value in requiring the Court of Appeal to permit an indigent parent
to personally file a brief after appointed counsel has concluded there are no
arguable issues, absent a showing of good cause, is too slight to justify the delay in
securing a permanent placement for the child.
Accordingly, we do not exercise our supervisory powers to require the
Court of Appeal to permit an indigent parent who has appealed from an order of
the juvenile court affecting his or her parental rights to personally file a brief
whenever appointed counsel files a brief raising no issues. Instead, we hold that
the Court of Appeal has the discretion to permit the parent to personally file a brief
and must do so only upon a showing of good cause that an arguable issue does, in
fact, exist.
M. H. argues that the Court of Appeal denied her meaningful access to the
court by refusing her request to personally file a brief, citing our decisions in In re
Marriage of Flaherty (1982) 31 Cal.3d 637 and Payne v. Superior Court (1976)
17 Cal.3d 908. M. H. acknowledges that ―[o]rdinarily a litigant represented by
counsel has access to the court through counsel and thus has no right also to
submit pro per filings (In re Barnett (2003) 31 Cal.4th 466, 471-473), but argues
that ―counsel‘s primary role is to challenge the judgment,‖ and an attorney who
files a brief raising no issues is unable to fulfill that function. According to M. H.,
this leaves the parent ―effectively unrepresented.‖ We are not persuaded.
Counsel appointed to represent an indigent parent on appeal from a ruling
affecting parental rights does not have an obligation to challenge the judgment if
there is no colorable basis for such a challenge. As we noted in Sade C., to
11
challenge a judgment the appellant ―must raise claims of reversible error or other
defect [citation] and ‗present argument and authority on each point made‘
[citations].‖ (In re Sade C., supra, 13 Cal.4th at p. 994.) Counsel cannot create a
basis for challenging the judgment where none exists, and neither can the parent.
If appointed counsel has determined there is no arguable basis for challenging the
judgment, the Court of Appeal is not required to permit the parent to personally
file a brief unless the parent can establish good cause by showing that an arguable
issue does, in fact, exist. The Court of Appeal is not required to permit the parent
to pursue an appeal that has no arguable merit.
M. H. briefly argues that ―equal protection rights are implicated in the
denial of a parent‘s right to personally file a supplemental brief when her appellate
counsel raises no issues,‖ stating, without explanation or citation to authority, that
―[e]qual protection principles prohibit disparate treatment of juvenile dependency,
criminal, and conservatorship appellants in their access to the courts.‖ ― ‗An
appellate court cannot assume the task of discovering the error in a ruling and it is
the duty of counsel by argument and the citation of authority to show the reasons
why the rulings complained of are erroneous. Contentions supported neither by
argument nor by citation of authority are deemed to be without foundation and to
have been abandoned.‘ [Citations.]‖ (Bradley v. Butchart (1933) 217 Cal. 731,
747.)
In any event, no violation of equal protection appears. The circumstance
that a criminal defendant whose appointed counsel has filed a Wende brief is
permitted to personally file a supplemental brief does not mean that an indigent
parent such as M. H. must be afforded a similar right in an appeal from a ruling
affecting parental rights. We held in Sade C. that equal protection principles do
not mandate that the procedures required by our decision in Wende in criminal
appeals apply to an appeal from an order of the juvenile court affecting parental
12
rights. (In re Sade C., supra, 13 Cal.4th at p. 991.) ―Criminal defendants and
parents are not similarly situated. By definition, criminal defendants face
punishment. Parents do not. [Citation.]‖ (Ibid.)
Nor is M. H. denied equal protection of the law by the circumstance that
our decision in Ben C. directs the Courts of Appeal to permit a conservatee on
appeal from the imposition of a conservatorship under the Lanterman-Petris-Short
Act to file a supplemental brief when appointed counsel has found no arguable
issues. A conservatee under the act is not similarly situated to a parent whose
parental rights have been affected by an order of the juvenile court. As Chief
Justice George observed in his dissent in Ben C.: ―The private interests at stake in
an LPS conservatorship proceeding are greater than those involved in a parental
rights termination proceeding . . . .‖ (Ben. C., supra, 40 Cal.4th 529, 547 (dis.
opn. of George, C. J.).)
Appointed counsel in the present case filed a brief raising no issues and the
Court of Appeal properly declined to permit the parent to personally file a brief
because the parent failed to make a showing of good cause that an arguable issue
does, in fact, exist. The court then properly dismissed the appeal on its own
motion. (Ben C., supra, 40 Cal.4th at p. 544; In re Sade C., supra, 13 Cal.4th at
p. 994.)
13
DISPOSITION
The judgment of the Court of Appeal is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.

BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.

14





DISSENTING OPINION BY KENNARD, J.

In California, a parent whose parental rights have been terminated by the
superior court has a statutory right to appeal that decision. (Welf. & Inst. Code,
§ 395.)1 If the parent cannot afford appellate counsel, one will be appointed.
(Fam. Code, § 7895.) When the parent‘s appellate counsel finds no arguable
issue, does the parent have the right to personally file a brief challenging the trial
court‘s decision? The majority answers ―no,‖ further holding that when appointed
counsel has raised no claim of error the parent‘s appeal may be dismissed as
abandoned. I disagree, as these holdings in effect nullify the parent‘s statutory
right to appeal.
I
The San Diego juvenile court terminated M.H.‘s parental rights to her
children — two-year-old Phoenix and one-year-old Dakota — choosing adoption
as the permanent plan for the children. (§ 366.26, subd. (b)(1).) M.H. appealed.
Because she was indigent, she asked the Court of Appeal to appoint counsel for
her. The court did so.
M.H.‘s appointed counsel filed with the Court of Appeal a document
entitled ―Appellant‘s Opening Brief.‖ The document summarized the facts of the

1
Unless otherwise stated, all statutory citations are to the Welfare and
Institutions Code.
1


case and mentioned some potential claims that counsel had investigated, with
citations to relevant case law. But counsel did not raise a single argument on
behalf of her client, M.H., instead stating there were ―no arguable issues.‖
Counsel asked the Court of Appeal to ―conduct an independent review of the
entire record on appeal for arguable issues of error in the court below.‖ This is a
procedure that the Court of Appeal must perform when, in a criminal case, the
appealing defendant‘s appointed counsel notifies the court that counsel has found
no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende
(1979) 25 Cal.3d 436.) But this procedure need not be followed when, as here, the
appeal involves parental rights. (In re Sade C. (1996) 13 Cal.4th 952, 984; but see
id. at pp. 999 (dis. opn. of Kennard, J. [expressing my view that the Anders/Wende
procedure is ―implicitly included in California‘s statutory scheme‖ governing
parental rights appeals].) Appellate counsel here also asked the Court of Appeal to
allow M.H. to submit within 30 days her own brief challenging the superior
court‘s decision terminating her parental rights.
The Court of Appeal rejected M.H.‘s counsel‘s request that it review the
record for error. And the court held that it had ―inherent discretion‖ to allow M.H.
to file a brief but saw ―no reason to allow it in this case.‖ The court then
dismissed the appeal. Although the Court of Appeal did not explain the reasons
for the dismissal, presumably it concluded that M.H. had abandoned her appeal
because her appointed appellate counsel had raised no claims of error on her
behalf. This court granted M.H.‘s petition for review.
II
As mentioned at the outset, a parent whose parental rights have been
terminated by the superior court has a statutory right to appeal that decision.
(§ 395.) The filing of an opening brief is a precondition to appellate review of the
merits of a trial court order or judgment: California‘s Rules of Court provide that
2
―[e]ach appellant must serve and file an appellant‘s opening brief.‖ (Cal. Rules of
Court, rule 8.200(a)(1).) Failure to do so may be considered an abandonment of
the appeal, resulting in its dismissal. (See generally Conservatorship of Ben C.
(2007) 40 Cal.4th 529, 544 & fn. 8; In re Sade C., supra, 13 Cal.4th at p. 994.)
According to the majority here, appealing parent M.H. did file an opening
brief — that was indeed the label on the document filed by her appointed counsel,
who found no arguable issues. Thus, the majority reasons, the request that M.H.
herself be allowed to file her own brief was nothing more than a request to file an
additional brief, a matter entirely within the discretion of the Court of Appeal.
(See Cal. Rules of Court, rule 8.200(a)(4) [a supplemental brief ―may be filed . . .
with the permission of the presiding justice‖].) I do not share this view. As I
explain below, the document at issue, which did not raise a single claim of error,
was not in actuality an opening brief. Hence, M.H.‘s request that she be allowed
to file her own appellate brief was in essence a request to file an opening brief
arguing why the superior court‘s decision was wrong in terminating her parental
rights.
A brief is a ―written statement setting out the legal contentions of a party in
litigation, esp. on appeal; a document prepared by counsel as the basis for arguing
a case, consisting of legal and factual arguments and the authorities in support of
them.‖ (Black‘s Law Dict. (8th ed. 2004) p. 204.) An appellate brief should make
― ‗a fair and sincere effort to show that the trial court was wrong.‘ ‖ (Gold v.
Maxwell (1959) 176 Cal.App.2d 213, 217, italics added.) Here, the document
filed by M.H.‘s appointed appellate counsel raised no ―legal contentions‖ and
made no ―legal and factual arguments‖ (Black‘s Law Dict., supra, at p. 204) in an
―effort to show that the trial court was wrong‖ (Gold, supra, at p. 217) in
3
terminating M.H.‘s parental rights.2 As respondent San Diego County Health and
Human Services Agency acknowledged at oral argument in response to my
inquiry, what M.H.‘s appellate counsel filed was not an opening brief but ―simply
a notification to the Court of Appeal that after a review of the record appellate
counsel was not able to identify any issues.‖
By denying M.H. permission to argue — after her appointed appellate
counsel‘s determination that there were no claims of error to raise — that the
superior court was wrong in terminating her parental rights, and by then
dismissing her appeal on the ground that her counsel had raised no claims of error
on her behalf, the Court of Appeal effectively nullified M.H.‘s statutory right to
appeal.
Moreover, there is a possible constitutional concern at issue here. An
appellate court‘s resolution of an appeal must be ―in writing with reasons stated.‖
(Cal. Const., art. VI, § 14.) When an appealing party does not ― ‗raise claims of
reversible error or other defect‘ ‖ (Conservatorship of Ben C., supra, 40 Cal.4th at
p. 544, fn. 8), the Court of Appeal may dismiss the appeal as abandoned without
violating this constitutional provision (id. at p. 544). Here, however, M.H. did not
abandon her appeal, for she specifically asked for permission to file a brief raising
such claims. That request was denied. Thus, the Court of Appeal erred in
dismissing M.H.‘s appeal without the careful examination and reasoned opinion
that this constitutional provision requires. (See People v. Kelly (2006) 40 Cal.4th
106, 120 [requirement that appeals be resolved in writing with reasons stated
promotes ―a careful examination of each case and a result supported by law and
reason‖].)

2
I do not fault M.H.‘s appointed appellate counsel for not raising any claims
of error; in her professional judgment there were no arguable issues.
4


For the reasons stated above, I would reverse the judgment of the Court of
Appeal, and I would direct that court to permit M.H. to file an appellant‘s opening
brief, and to decide the merits of any claims she raises ―in writing with reasons
stated.‖ (Cal. Const., art. VI, § 14.)
KENNARD, J.
5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Phoenix H.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 152 Cal.App.4th 1576
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S155556
Date Filed: December 21, 2009
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Peter E. Riddle*

__________________________________________________________________________________

Attorneys for Appellant:

Patti L. Dikes, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, Lisa M. Maldonado and
Gary C. Seiser, Deputy County Counsel, for Plaintiff and Respondent.

Steven J. Carroll, Public Defender, and Ana España for Minors.


*
Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Patti L. Dikes
2907 Shelter Island Drive, #105
San Diego, CA 92106
(619) 222-4252

Lisa M. Maldonado
Deputy County Counsel
4955 Mercury Street
San Diego, CA 92111-1703
(858) 492-2500

Petition for review after the Court of Appeal dismissed an appeal from an order terminating parental rights. This case presents the following issue: When appointed counsel for a parent whose custody rights have been adversely affected by state-initiated action files a brief in the Court of Appeal that presents no arguable claim of error, does the parent, acting in propria persona, has the right to submit a supplemental brief?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 12/21/200947 Cal. 4th 835, 220 P.3d 524, 102 Cal. Rptr. 3d 481S155556Review - Civil Appealsubmitted/opinion due

Parties
1H., Phoenix (Overview party)
2San Diego County Health & Human Services Agency (Plaintiff and Respondent)
Represented by Lisa Marie Maldonado
Office of the County Counsel
325 S. Melrose Drive, Suite 131
Vista, CA

3San Diego County Health & Human Services Agency (Plaintiff and Respondent)
Represented by Gary C. Seiser
Office of the County Counsel
4955 Mercury Street
San Diego, CA

4H., Miryam (Defendant and Appellant)
Represented by Patti L. Dikes
Attorney at Law
2907 Shelter Island Drive, #105
PMB 306
San Diego, CA


Opinion Authors
OpinionJustice Carlos R. Moreno
DissentJustice Joyce L. Kennard

Dockets
Aug 17 2007Petition for review filed
  Miryam H., Appellant Attorney Patti L. Dikes
Aug 21 2007Record requested
 
Aug 23 2007Received Court of Appeal record
  one doghouse
Oct 10 2007Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Nov 8 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Patti L. Dikes is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. Your attention is directed to California Rules of Court, rule 8.520, for the briefing requirements. Please note also that, because this is a child dependency case, the court may grant an extension of time only on "an exceptional showing of good cause." (Code Civ. Proc., 45; Cal. Rules of Court, rule 8.454.)
Dec 7 2007Request for extension of time filed
  to serve and file appellant's opening brief on the merits, until January 18, 2008. Miryam H., appellant Patti L. Dikes, counsel
Dec 11 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's opening brief on the merits is extended to and including January 18, 2007.
Jan 22 2008Opening brief on the merits filed
  Miryam H., appellant Patti L. Dikes, counsel CRC 8.25b
Feb 25 2008Request for extension of time filed
  until March 5, 2008, to serve and file respondent's answer brief on the merits San Diego County Health and Human Services Agency, respondent Lisa Maldonado, counsel
Mar 4 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent San Diego County Health and Human Services Agency's answer brief on the merits is extended to and including March 5, 2008.
Mar 5 2008Answer brief on the merits filed
  San Diego County Health and Human Services Agency, respondent Lisa M. Maldonado, counsel
Mar 18 2008Joinder to answer filed
  with permission to join the answer brief on the merits filed by respondent San Diego County Health and Human Services Agency Phoenix H., et al., minors Ana Espana, counsel
Mar 24 2008Request for extension of time filed
  10-days until April 14, 2008, to serve and file appellant's reply brief on the merits Miryam H., appellant Patti L. Dikes, counsel
Mar 25 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant Miryam H.'s reply brief on the merits is extended to and including April 14, 2008.
Apr 14 2008Reply brief filed (case fully briefed)
  Miryam H., appellant Patti L. Dikes, counsel
Sep 2 2009Case ordered on calendar
  To be argued Tuesday, October 6, 2009, 9:00 a.m., Los Angeles, California.
Oct 6 2009Cause argued and submitted
 
Dec 18 2009Notice of forthcoming opinion posted
  To be filed Monday, December 21, 2009 at 10 a.m.

Briefs
Jan 22 2008Opening brief on the merits filed
 
Mar 5 2008Answer brief on the merits filed
 
Apr 14 2008Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 4, 2010
Annotated by yiyuko

Facts and Background:
Appointed counsel for a parent whose parental rights were terminated by the juvenile court filed a brief raising no issues, but asked the court to permit the parent to personally file a supplemental brief. The Court of Appeal denied the request and dismissed the appeal. The Supreme Court granted review.

Issue:
When appointed counsel for a parent whose custody rights have been adversely affected by state-initiated action files a brief in the Court of Appeal that presents no arguable claim of error, does the parent has the right to submit a supplemental brief?

Holding:
No. If appointed counsel has filed a brief that there is no arguable basis for challenging the judgment, The Court of Appeal is not required to permit the parent to personally file a brief unless the parent can establish good cause by showing that an arguable issue does, in fact, exist.

Opinion (J.Monero):
Unlike the conservatorship proceedings at issue in Ben C., unnecessary delay must be avoided in an appeal from a juvenile court order terminating parental rights, to protect the child’s interest in securing a permanent placement as soon as possible. The delay that would ensue from requiring the Court of Appeal to permit an indigent parent to personally file a brief after appointed counsel has determined there are no arguable issues, absent a showing of good cause, would not be justified by an increase in fairness or accuracy of the proceedings.
Accordingly, the Supreme Court would not exercise their supervisory powers to require the Court of Appeal to permit an indigent parent who has appealed from an order of the juvenile court affecting his or her parental rights to personally file a brief whenever appointed counsel files a brief raising no issues, Instead, the Court of Appeal has the discretion to permit the parent to personally file a brief and must do so only upon a showing of good cause that and arguable issue does, in fact, exist.
The Supreme Court rejected the parent’s argument by saying that counsel appointed to represent an indigent parent on appeal from a ruling affecting parental rights does not have an obligation to challenge the judgment if there is no colorable basis for such a challenge. The court also said that in any event, no violation of equal protection appears.
The Supreme Court concluded that the Court of Appeal properly declined to permit the parent to personally file a brief because the parent failed to make a showing of good cause that an arguable issue does, in fact, exist, then, properly dismissed the appeal on its own motion.
C.J. George, J. Baxter, J. Werdeger, J. Chin and J. Corrigan concurred.

Dissenting Opinion (J.Kennard):
The document at issue, which did not raise a single claim of error, was not in actuality an opening brief. Hence the parent’s request that she be allowed to file her own appellate brief was a request to file an opening brief arguing why the superior court’s decision was wrong in terminating her parental rights. Moreover, The Court of Appeal erred in dismissing the parent’s appeal without the careful examination and reasoned opinion that a constitutional provision (Cal. Const., art. VI §14) requires. The parent did not abandon her appeal, for she specifically asked for permission to file a brief raising claims.
Accordingly, Justice Kennard would reverse the judgment of the Court of Appeal, and he would direct that court to permit the parent to file an appellant’s opening brief, and to decide the merits of any claims she raises in writing with reasons stated.